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UNLAWFUL PRESENCE

Unlawful Presence and Inadmissibility

Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a “period of stay authorized by the Secretary.” You will be found inadmissible (unless an exception applies):

  • If you again seek admission within three years of departing the United States, after having accrued more than 180 days but less than one year of unlawful presence during a single stay and before removal proceedings begin;
  • If you again seek admission within 10 years of departing or being removed from the United States, after having accrued one year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or
  • Permanently, if you 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.

You can find these inadmissibility grounds in the Immigration and Nationality Act (INA) section 212(a)(9)(B)(i)(I) and (II) (the three-year and 10-year unlawful presence grounds of inadmissibility) and INA 212(a)(9)(C)(i)(I) (the permanent unlawful presence ground of inadmissibility).

According to section 212(a)(9)(B)(ii) of the INA, you accrue unlawful presence if:

  • You are present in the United States without being admitted or paroled; or
  • You have remained in the United States after the expiration of the period of stay authorized by the DHS secretary.

If you are in the United States without having been admitted to or paroled into the country by an immigration officer, then you started accruing unlawful presence on the day you entered the country without admission or parole.

In general, if you were admitted or paroled into the United States by an immigration officer, you were issued or received a Form I‑94, Arrival/Departure Record, which shows a specific date when you are required to leave. Typically, you start accruing unlawful presence if you remain in the United States after the date noted on your Form I-94. However, if you are admitted for duration of status (D/S) and your Form I-94 is marked “D/S”, then you may stay in the United States for the duration of your program, course of study, or temporary work assignment to the United States, plus any additional grace periods that may be authorized afterward.

In the Adjudicator’s Field Manual (AFM) Chapter 40.9.2 (PDF, 1017.74 KB), we outline when you are considered to be in a “period of stay authorized.” If you are in the United States maintaining lawful status, meet the requirements for an exception, or are otherwise considered to be in a period of stay authorized by the DHS secretary, then you do not accrue unlawful presence.

The law also provides exceptions for accrual of unlawful presence to the following noncitizens:

  • Asylees: Time while a nonfrivolous asylum application is pending is not counted as unlawful presence.
  • Minors: Children do not accrue unlawful presence while they are under age 18.
  • 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.

The law also provides exceptions to the three-year and 10-year unlawful presence grounds of inadmissibility generally for:

  • Battered spouses and children: The three-year and 10-year unlawful presence grounds of inadmissibility do not apply to self-petitioners under the Violence Against Women Act (VAWA) and their dependents if they can establish a substantial connection between the battery or extreme cruelty that is the basis for the VAWA claim and the violation of the terms of the noncitizen’s nonimmigrant visa.
  • Victims of severe forms of trafficking in persons: The three-year and 10-year unlawful presence grounds of inadmissibility do not apply to trafficking victims who demonstrate that a severe form of trafficking was at least one central reason why they were unlawfully present in the United States.

These exceptions apply only to the three-year and 10-year unlawful presence grounds of inadmissibility found in INA 212(a)(9)(B)(i)(I) and (II). They do not apply to the permanent unlawful presence ground of inadmissibility found in INA 212(a)(9)(C)(i)(I).

In addition to these exceptions provided by law, 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 three-year, 10-year, and permanent unlawful presence grounds of inadmissibility, you are considered to be in a period of stay authorized by the DHS secretary. When any of these circumstances described in the Adjudicator’s Field Manual, Chapter 40.9.2 (PDF, 1017.74 KB) apply, you generally are not accruing unlawful presence.

If you are a noncitizen and you are not a lawful permanent resident of the United States, you are inadmissible (unless an exception applies) if:

  • You accrued more than 180 days but less than one year of unlawful presence during a single stay in the United States on or after April 1, 1997;
  • You 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; and
  • You again seek admission within three years of your departure following your accrual of unlawful presence.

The statutory three-year period starts when you depart the United States.

 

Though if you reenter the clock may continue to run for the three and ten-year bars under new USCIS police

You are not inadmissible under the three-year unlawful presence ground of inadmissibility if you accrued more than 180 days but less than one year of unlawful presence and left the United States after the commencement of removal proceedings, but before the one-year mark. Even if you are not inadmissible under this ground of inadmissibility, you could be inadmissible for other reasons. If you leave the United States after the commencement of removal proceedings, including voluntarily, it is your responsibility to inform the Executive Office for Immigration Review. If you fail to attend removal proceedings and/or if the immigration judge orders you removed in absentia, you could still be inadmissible, even if the reason you did not attend the removal proceedings was due to your departure.