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Articles Posted in Duration of Stay

What’s the difference between someone who is undocumented in the United States and someone who is here illegally?

What does it mean to be “undocumented”?

When someone is in the United States “undocumented,” that means that the person entered the United States without inspection (without the proper documentation), and as a result are currently living in the United States without the proper documentation, hence the term “undocumented.”

What does it mean to be in the U.S. “illegally”?

On the other hand, someone who came to the United States on a valid visa (such as a student visa, tourist visa, etc.) and then lost their status, either because they did not renew their visa, or their visa expired, or for some other reason, are in the United States “illegally.” These individuals were legally in the United States at some point but are now in the United States “illegally” because they are now out of status. This is also referred to as a visa overstay.  That is because the individual has now stayed in the United States past the time authorized by their initial visa.

In both cases, the individual is in the United States without authorization because they do not have the proper visa.

Path to Residency

A person who is “undocumented” meaning that they entered the United States without proper inspection, cannot adjust their status to permanent residency so easily even where married to a U.S. Citizen. Undocumented parties married to U.S. Citizens must file a waiver of inadmissibility and in some cases will have to leave the United States before applying for residency.

By contrast, a person who entered the United States with proper inspection, but who is now in the United States illegally because of an overstay, can apply for permanent residency more easily, where married to a U.S. Citizen. These individuals do not have to leave the United States before applying for residency.

The key difference between the two is in whether the person entered the country with inspection. If you entered without inspection, you would be undocumented. If you entered with inspection, but have overstayed your visa, you are in the country illegally.

If you have questions about relating to your status and legalization, please contact us.

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In this video we cover a new USCIS policy that can have devastating consequences on students who overstay their duration of stay in the United States, or otherwise violate their status. This new policy will change the way F-1, J-1, and M students, accrue unlawful presence in the United States, for visa holders have violated the terms of their visa by not attending school or engaging in unauthorized employment.

Background

In the year 1996 Congress passed legislation that previously governed how an individual on a non-immigrant visa type such as an F-1 visa, could accrue unlawful presence. Pursuant to this legislation, visa holders who overstayed for more than 180 days, could be subject to a 3-year bar, while visa holders who overstayed for more than one year, could be subject to a 10-year bar.

Typically, individuals who travel to the United States on a non-immigrant visa type receive an I-94 arrival/departure record and a stamp in their passport indicating the length of their authorized stay in the United States. Failure to abide by the duration of stay results in an immigration violation of the terms and conditions of a non-immigrant visa type.

F, J, and M students are unique in that these individuals do not receive a definitive length of stay within the United States, and instead are issued an I-20 (for F students) or DS-2019 (for J students) that denotes their authorized stay as “D/S” or “Duration of Stay,” meaning that the individual’s stay within the United States is not confined by any particular date, but instead depends upon the conclusion of that individual’s program of study or authorized employment.

While students on an F-1 visa type could violate their status by failing to go to school, they could not accrue unlawful presence within the United States because of the D/S designation. This class of individuals could only accrue unlawful status at the time of being apprehension by an immigration official or by court judgment.

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