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What Counts as “Unlawful Presence” In United States?

Unlawful presence is the period of time when an alien is in the United States without being admitted or paroled or when an alien is not in a “period of stay authorized by the Secretary.” The Alien may be barred from reentering the United States for:

  • 3 years, if they depart the United States after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay and before the commencement of removal proceedings
  • 10 years, if they depart the United States after having accrued one year or more of unlawful presence during a single stay, regardless of whether they leave before, during, or after removal proceedings; or
  • Permanently, if they reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.

One can accrue unlawful presence if:

  • They are present in the United States without being admitted or paroled
  • They have remained in the United States after the expiration of the period of stay authorized by the Secretary of Homeland Security (the Secretary).
  • If they are in the United States without having been admitted to or paroled into the country by an immigration officer, then they started accruing unlawful presence on the day they entered the country without admission or parole.

Significance of the Form-I-94 Date

Form I-94, Arrival-Departure Record, shows a specific date when a person is required to leave. Typically an unlawful presence is accrued if the person chose to remain in the United States after the date noted in Form I-94.

However, if one is admitted for the duration of status (D/S), and their form is marked D/S, then they may stay in the United States for the duration of the program, course of study, or temporary work assignment to the United States, plus an additional grace periods that may be authorized afterward. There are also some exceptions to this rule when unlawful presence is not accrued

Exceptions For Accrual of Unlawful Presence 

  • For Asylees: Time, while a nonfrivolous asylum application is pending, is not counted as unlawful presence.
  • For Minors: Children do not accrue unlawful presence while they are under age 18.
  • For Family Unity Beneficiaries: Individuals with protection under the Family Unity Program, as provided under section 301 of the Immigration Act of 1990, do not accrue unlawful presence while that protection is in effect.
  • For Battered Spouses and Children: Self-petitioners under the Violence Against Women Act (VAWA) do not accrue unlawful presence if they can show a connection between the status violation and the abuse.
  • For Victims of Severe Forms of Trafficking: Trafficking victims who can show that a severe form of trafficking was at least one central reason why they were unlawfully present in the United States will not be considered inadmissible due to unlawful presence.
  • These exceptions apply only to the 3-year and 10-year unlawful presence bars
  • They do not apply to the permanent unlawful presence bar
  • There are also some special circumstances when your lawful status may have expired or you may have entered without admission or parole, but for purposes of counting your unlawful presence towards the 3-year, 10-year, and permanent unlawful presence bars, you are considered to be in a period of stay authorized by the Secretary

The 3-year Unlawful Presence Bar

An alien  but  not a lawful permanent resident of the United States may be inadmissible for 3 years if:

  • If they accrued more than 180 days but less than 1 year of unlawful presence during a single stay in the United States on or after April 1, 1997
  • They voluntarily departed the United States before DHS initiated either expedited removal proceedings under INA 235(b)(1) or removal proceedings before an immigration judge under INA 240

This 3-year inadmissibility period starts when the alien departs or is removed from the United States.

During this 3-year inadmissibility period, the alien is not eligible to:

  • Receive an immigrant (permanent) visa or a nonimmigrant (temporary) visa to come to the United States;
  • Adjust their status in the United States to that of a lawful permanent resident (Green Card holder)
  • Be admitted to the United States at a port of entry

The 10-year Unlawful Presence Bar

An alien but not a lawful permanent resident of the United States may be inadmissible for 10 years if:

  • If they accrued 1 year or more of unlawful presence during a single stay in the United States on or after April 1, 1997
  • They voluntarily departed the United States or were removed from the United States under any provision of law

The 10-year unlawful presence bar applies even if the alien leaves before, during, or after removal proceedings.

This 10-year inadmissibility period starts when the alien departs or is removed from the United States.

During this 10-year inadmissibility period the alien is not eligible to:

  • Receive an immigrant or a nonimmigrant visa to come to the United States;
  • Adjust their status in the United States to that of a lawful permanent resident (Green Card holder);  or
  • Be admitted to the United States at a port of entry.

However, an alien is subject to the 3-year or the 10-year unlawful presence bars, may receive a visa and/or be admitted to the United States if they apply for and receive a waiver of inadmissibility. The legal requirements and procedures for applying for the waiver depend on the immigration benefit they seek.

The Permanent Unlawful Presence Bar

An alien but not a lawful permanent resident of the United States may be inadmissible forever  if:

  • If they accrued an aggregate period of more than 1 year of unlawful presence in the United States on or after April 1, 1997, and then departed the United States or were removed from the United States
  • If they entered or attempted to reenter the United States on or after April 1, 1997, without a DHS officer admitting or paroling you into the United States

“Aggregate period” means the total number of days of unlawful presence that they have accumulated during all of their stays in the United States combined.

If the permanent unlawful presence bar applies to the alien, they will be permanently ineligible to:

  • Receive an immigrant or a nonimmigrant  visa to come to the United States;
  • Adjust their status in the United States to that of a lawful permanent resident (Green Card holder)
  • Be admitted to the United States at a port of entry.

However, the alien can obtain permission called- “consent to reapply for admission” to the United States, if they have stayed outside the United States for more than 10 years. This permission is subject to denial, and the alien will still remain inadmissible on the same ground.

Policy Change and Injunction

On Aug. 9, 2018, USCIS published a policy memorandum (Unlawful Presence and F, J, and M Nonimmigrants) that updated and outlined changes on how those in student (F), exchange visitor (J), and vocational student (M) nonimmigrant status accrue unlawful presence. The policy memorandum also applies to the spouses and children of F, J, and M nonimmigrants. These changes went into effect on Aug. 9, 2018and were made to reduce the number of overstays and improve how USCIS implements the unlawful presence grounds of inadmissibility.

Under the new policy, those in F, J, and M nonimmigrant status accrue unlawful presence as follows:

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before Aug. 9, 2018, start accruing unlawful presence based on that failure on Aug. 9, 2018, unless they have already started accruing unlawful presence on the earliest of the following:

  • The day after DHS denied the request for the immigration benefit if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record expired, if the F, J, or M was admitted for a date certain; or
  • The day after an immigration judge ordered them excluded, deported, or removed (whether or not the decision is appealed).

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after Aug. 9, 2018, on the earliest of any of the following:

  • The day after the F, J or M nonimmigrant no longer pursues the course of study or the authorized activity or the day after he or she engages in an unauthorized activity
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders them excluded, deported, or removed (whether or not the decision is appealed).
  • On May 3, 2019, the U.S. District Court for the Middle District of North Carolina, issued an injunction  regarding PM-602-1060 and PM-602-1060.1, policy memoranda titled, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” issued on May 10, 2018, and Aug. 9, 2018, respectively. the details of that injunction could be found here.
  • Due to the nationwide preliminary injunction, USCIS is preliminarily enjoined from applying the policies in these policy memoranda to F, J, and M nonimmigrants.
  • Until further notice, USCIS will apply the prior policy guidance in AFM Chapter 40.9.2, issued on May 6, 2009
  • The previous guideline concerning Unlawful Presence could be found here

Determining if an unlawful presence bar applies to you can be complex. This blog is for your information about the unlawful presence This blog should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction.