“Doctor Franco, I submitted a request to extend my tourist status about which they have not answered me yet and then I sent a request to change my status to that of student, which is also pending. The person who prepared the applications for me tells me not to worry that I am legal in this country, but my aunt told me that a nephew of her friend had the same thing and now she can no longer enter the United States. Who is right?”
To the question of “who is right,” the answer is “it depends.”
Steve Jobs is credited with the phrase, “If you can’t explain it simply, then you don’t get it right.” Clearly, Steve, or whoever made that phrase, does not practice immigration law. But well, I’ll do my best to raise your standard of excellence, Steve.
The main thing is to understand the difference — and its relevance — between the terms “illegal status” and “illegal presence.” The status of a foreigner defines the time during which he can stay in the country legally and the activities that he can develop during his stay. All foreigners who maintain their status in the country have legal presence in the country. On the contrary, if a foreigner exceeds the time of stay or activities authorized by his status then he becomes in the country in an illegal status. Likewise, in general terms, being in illegal status, it is also in illegal presence.
The relevance of the distinction between the terms unlawful status and unlawful presence extends to numerous circumstances beyond the coverage of this article. If you remain or remained in the country in illegal status or illegal presence, we suggest that you contact an experienced immigration attorney to determine the consequences of those conditions in your particular case.
Now, for the purposes of the question formulated at the beginning of this article, the relevance of the distinction between the terms illegal status and illegal presence circulates around the following consequences. On the one hand, an alien in illegal status is deportable and, in general terms, she is not eligible to request a change or extension of her status. On the other hand, a foreigner who accumulates more than 180 but less than 365 continuous days of illegal presence, and then leaves the country, becomes inadmissible for a period of 3 years. Similarly, a foreigner who accumulates more than 365 continuous days of illegal presence, and then leaves the country, becomes inadmissible for a period of 10 years.
However, there are exceptional circumstances in which the stay of an alien in illegal status is authorized by the Department of Homeland Security. An alien in illegal status, but with authorization to stay, is still deportable and ineligible to request a change or extension of her status, but does not accumulate time of illegal presence for the purposes of counting the 180 and / or 365 continuous days that would
For example, a foreigner who submits a request for extension or change of status while still retaining her original status is authorized to stay during the processing of the request for extension or change of status, provided that such request is not frivolous. This means that while the application is pending with the immigration service, it does not accumulate time of illegal presence for the purposes of counting the 180 and / or 365 continuous days that would result in its inadmissibility.
Now, as we clarified previously, once the original status of the foreigner expires and while the immigration service does not approve the request for change / extension of status, the foreigner is in illegal status, although she does not accumulate time of illegal presence for the.Being in illegal status, the alien is deportable and would not be eligible to request a change / extension of status. This small clarification that we have highlighted in bold previously, is a source of controversy, confusion, and “sad surprises.”
With the above in mind, we can see why the answer to the question posed at the beginning of the article is “it depends.” The legality of the status or the presence of the questioner depends on the expiration date of your original status and the date on which the immigration service received your request for an extension of your tourist status and your request for a change of status to student.
For a detailed analysis on the legality of your status and / or presence in the United States or if you have questions about a possible request for an extension / change of status, schedule a consultation with Attorney Franco through our website.
Fernando Franco, Esq.