Who Is an Undocumented Immigrant?

Answers to common questions about illegal immigration in the United States and what it means to be undocumented.

The easy definition of an undocumented immigrant is a foreign-born person who doesn't have a legal right to be or remain in the United States. But that's where the easy part stops. Let's look at some common questions and misconceptions about undocumented immigrants.

Is an undocumented immigrant the same as an illegal alien?

Theoretically yes, but "illegal alien" is not a technical term. It's popularly used jargon, nowhere found in the U.S. immigration laws. Because of its insulting connotations, however, we at Nolo prefer to use more neutral terms like "undocumented immigrant" or "unauthorized immigrant."

In fact, the immigration reform bill proposed by President Joe Biden would remove the term "alien" from U.S. immigration law and replace it with "noncitizen."

How many undocumented immigrants are in the United States?

Estimates place the number of undocumented immigrants in the U.S. at between approximately 10.5 and 12 million. Of course, it's an impossible number to know precisely, since this is a population that attempts to stay under the radar.

Do all undocumented immigrants sneak across the U.S. border?

Some, but not all. Although accurate numbers are hard to come by, it's clear that a significant number of undocumented immigrants originally came to the U.S. legally from various countries, whether as tourists or on some other nonimmigrant (temporary) visa. Then they failed to leave after the expiration date of their permitted stay arrived.

Overstaying a visa carries its own consequences under U.S. immigration law.

Why hasn't the U.S. deported all undocumented immigrants?

Partly because U.S. enforcement resources are insufficient to keep up with the numbers. Detaining and deporting even one person costs many thousands of dollars.

It's also important to understand that there are gray areas, where someone who might be considered undocumented has what almost amounts to a right to remain in the United States. Some undocumented immigrants are unaware that they might have the right to remain in the U.S. based upon a valid claim for asylum, Temporary Protected Status (TPS), or another form of immigration relief.

For example, asylum seekers being sought for persecution by their own government, who are unable to make direct contact with a refugee agency in their own country, might have no choice for U.S. entry but to come illegally. If stopped at the border, they should be allowed to state their claim and, if their fear is found credible, to see an immigration judge.

Or, if an asylum seeker makes it into the U.S. unseen, he or she has one year in which to prepare an application for asylum. Although the person has no actual right to be in the U.S. during that time, a would-be applicant who is caught and placed into removal proceedings can claim asylum at that point, and might very well be approved for asylum (and one year later, be eligible for a green card).

What's more, under a policy called "prosecutorial discretion," various immigrants, such as students and those with close family members in the U.S., are supposed to be largely left alone by the immigration authorities, so that the authorities can concentrate on immigrants who are criminals or otherwise a risk to U.S. society. Some of these immigrants may actually be granted a sort of limbo status called "deferred action," and in some cases a work permit. See, for example, Deferred Action for Childhood Arrivals (DACA).

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