Remaining in the United States without authority is often referred to as Unlawful presence (ULP). This is defined as maintaining a presence in the United States after the expiration of the period of stay authorized by the Department of Homeland Security, or any presence without being admitted or paroled.
When detained for unlawful presence individuals are arrested and placed in a detention facility. At this time, the alleged offender will most likely be forced to contend with removal/deportation proceedings and the underlying criminal offense. The complicated nature of immigration charges and ancillary deportation/removal proceedings makes obtaining experienced immigration crimes defense counsel an imperative for reducing risk and increasing the chances of a favorable outcome.
ULP in some cases can encompass a range of ancillary immigration crimes including document fraud and identity theft arising from the use of false or stolen identity documents.
Criminal schemes related to ULP often involve those of employers maintaining the employment of an out of status alien. These schemes often spill over into tax crimes and offenses related to identity fraud.
Crimes related to ULP include document fraud, identity theft arising from the use of false or stolen identity documents and in some cases can involve crimes against employers for hiring unauthorized aliens.
INA § 212(a)(9)(B)(ii), 8 USC § 1182(a)(9)(B)(ii) An alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.
ULP is not a violation of a criminal statute, however the penalties involve removal and bars on readmission to the United States.
3-Year and 10-Year Bar
Immigration and Naturalization Act (INA) section 212(a)(9)(B)(i)(I) makes inadmissible any alien who “was unlawfully present in the United States for a period of more than 180 days but less than 1 year . . . [who] again seeks admission within 3 years of the date of such alien’s departure or removal.” Also, INA section 212(a)(9)(B)(i)(II) makes inadmissible any alien who “has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s removal or departure.”
Under INA § 212(a)(9)(C)(i)(I), an individual who has been ULP in the U.S. for an aggregate period of more than one year and then enters, or attempts to enter, the U.S. without being admitted is permanently inadmissible.
An individual defending against allegation of maintaining an unlawful presence in the United States may contest the circumstances of “unlawfulness” They further may raise a defense contesting the calculation of the time in unlawful presence status in the United States. Another defense strategy rests in contesting the penalties imposed as a result of being found a having an unlawful presence.
Unlawful presence deportations have increased under the Obama administration with over 2 million occurring since 2008. A majority of these prosecutions have involved cases of illegal entry, where a smaller but still significant number have involved ULP.