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For aliens lawfully present in the U.S. it is important to understand the difference between being in an
unlawful status or accruing unlawful presence in the country.

The “status” is determined by the purpose for which the foreign person has been admitted in the U.S.
(visitor, student, employee, investor, etc.). When a specific status expires, the alien is no longer in a
lawful status and is eligible for deportation.

Section 212(a)(9)(B)(ii) of the Immigration Nationality Act (the “Act”) defines “unlawful presence” when
the alien is present in the U.S. (i) after the expiration of the period of stay authorized by the Secretary of
Homeland Security (generally noted on form I-94), or (ii) without being admitted or paroled. Besides
being eligible for deportation, the alien is then inadmissible in the country for three or ten years
depending on the duration of the previous overstay.

Although these concepts are related (one must be present in an unlawful status in order to accrue
unlawful presence), they are not the same. In fact, there are situations in which an alien who is present
in an unlawful status nevertheless does not accrue unlawful presence. As a matter of prosecutorial
discretion, Department of Homeland Security (“DHS”) may permit an alien who is present in the United
States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to
remain in the United States while that application is pending. In this sense, the alien’s remaining can be
said to be “authorized.” However, the fact that the alien does not accrue unlawful presence does not
mean that the alien’s presence in the United States is actually lawful.

EXAMPLE 1
An alien is admitted as a nonimmigrant, with a Form I-94 that expires on January 1, 2009. The alien
remains in the United States after the Form I-94 expires. The alien’s status becomes unlawful and be-
gins to accrue unlawful presence on January 2, 2009. On May 10, 2009, the alien properly files an
application for adjustment of status. The filing of the adjustment application stops the accrual of
unlawful presence. However, it does not “restore” the alien to a substantively lawful immigration status.
The alien is still eligible for deportation because of remaining in the U.S. after the expiration of the
nonimmigrant admission.

EXAMPLE 2
An alien is admitted as a nonimmigrant, with a Form I-94 that expires on January 1, 2009. On October 5,
2008, he properly files an application for adjustment of status. He does not, however, file any
application to extend his nonimmigrant stay, which expires on January 1, 2009. The adjustment of status
application is still pending on January 2, 2009. On such date, the alien becomes subject to removal
because he has remained after the expiration of his nonimmigrant admission. For purposes of future
inadmissibility, however, the pending adjustment application protects the alien from the accrual of
unlawful presence and prevents triggering the three or ten-years bar.

Due to significant implications on permanence or entry in the U.S., it is important to avoid losing the
lawful status and/or to remain in the country beyond the authorized period of stay. Waivers of
deportation or inadmissibility are available but are limited to narrow circumstances.

Marco Costa, attorney with West, Longenbaugh, Spanier and Zickerman, PLLC, focuses his practice on business immigration and naturalization, corporate and business law.