Understanding Unlawful Presence

Originally published 02/24/2011.

The United States has adopted some very strict laws which able to persons who enter the United States and do not honor their visas. The consequences for those who stay in the U.S. beyond the period of stay granted can begin to accrue "unlawful presence." Persons who accrue sufficient days of unlawful presence may have serious problems down the road. Unlawful presence has also been an area of immigration law that has been historically unsettled or unclear. A few years ago the USCIS published a lengthy memo setting forth its position with respect to unlawful presence. This article summarizes the primary unlawful status issues. The complete USCIS memo is attached below for those who are interested in more detail.

What is Unlawful Presence?

A person is "unlawfully present" in the United States if her or she remains in the U.S. beyond the period of the authorized stay granted at the time of entry. With some exceptions, most non-immigrants who enter the U.S. are issued a Form I-94 which sets forth the non-immigrant visa class in which the person is admitted to the U.S. and the length of time the person is authorized to stay in the U.S. In these cases, the period of authorized stay is clear and the non-immigrant begins to accrue unlawful presence in the U.S. on the day after the date noted on the I-94.

Important Note: I-94 vs. Visa

Often times people do not understand the difference between the validity period of a visa and the I-94. Visas are often issued for long periods of time. For example it is not uncommon for a tourist visa to be issued for up to 10 years. However, this does not mean that the holder of the visa can stay in the U.S. as a visitor for 10 years. The visa simply grants it holder permission to present himself at the U.S. border and apply for admission in the category of his visa. The CPB official who inspects the non-immigrant at the port of entry will determine the length of the authorized stay and issue an I-94 with that date noted. Thus, a person with a 10 year visitor visa may only be granted a period of stay of 3 or 6 months.

In cases where no I-94 is issued (such as in the case of Canadian citizens who enter as visitors) or in cases where the period of authorized stay on the I-94 is noted as D/S or "Duration of Status" the non-immigrant does not begin to accrue unlawful presence until the USCIS or an Immigration Judge makes a determination that the person is out of status. For example, if a person is admitted to the U.S. as an F1 student and drops out of school after 6 months months the person does not begin to accrue unlawful presence because he was admitted for "Duration of Status" and no official determination had been made with respect to his status. While the person in this case is in violation of his visa and in unlawful status there is no unlawful presence accruing. If however, the student sometime thereafter applies to change his status to that of a visitor or some other non-immigrant status and that case is denied by the USCIS this is considered an official USCIS that would officially render the F1 student as "out of status" and he would begin to accrue unlawful presence at that point.

What are the Consequences of Unlawful Presence?

Section 212(a)(9)(B) of the Immigration and Nationality Act sets forth very serious consequences for those who accrue significant unlawful presence in the U.S. The section provides that anyone who is unlawfully present in the U.S. for 180 days but less than one year and departs voluntarily is inadmissible for three years. If the period of unlawful presence is one year or more the period of inadmissibility is ten years. This is commonly referred to as the 3 and 10 year bar.

How are Days of Unlawful Presence Calculated?

A person begins to accrue unlawful presence on the day after his or her period of unauthorized stay expires and the unlawful presence will continue to accrue until the alien departs the U.S. Importantly, for purposes of the 3/10 year bar, unlawful presence is not counted in the aggregate and must be accrued in a single U.S. visit. Voluntary departure from the U.S. essential resets the unlawful presence counter.

In some situations accrual of unlawful presence is tolled or stopped.

Special Tolling Provisions

For example, unlawful presence does not accrue for persons in the following circumstances:

• Aliens under the age of 18. Unlawful presence begins to accrue on the aliens 18th birthday. As a result it is important for minors who are unlawfully present in the U.S. to take action before their 18th birthday.
• Persons who have a bona fide application for asylum pending.
• Persons protected under the Family Unity Act.
• Persons entitled to protection under the Violence Against Woman Act (VAWA.)
• Certain persons who were the victims of human trafficking.

Tolling Pending Adjudication of Applications to Change or Extend Status

Unlawful presence is also tolled for a minimum period of 120 days for persons who:

• Are lawfully admitted
• Have filed a non-frivolous application to change or extend their non-immigrant status prior to expiration of their current authorized stay
• Have not been unlawfully employed before the application was filed or while it is pending

The 120 day tolling period was extended pursuant to a USCIS policy. The 120 day tolling period now includes the entire time the application is pending as long as the other requirements are met.

If the application is denied, unlawful presence begins to accrue from the date of denial unless the application was untimely, frivolous or the applicant engaged in unlawful employment. In the latter case unlawful presence is calculated from the original I-94 expiration date.

In some circumstances the person may decide to depart the U.S. while the application to change or extend status is pending. In these cases, the departure does not trigger the 3/10 year bar even if the I-94 has expired unless the application was frivolous, untimely or the person worked in the U.S. without authorization. A person admitted for D/S also does not trigger the 3/10 year bars by departing before the application is adjudicated.

Tolling After Filing of Application for Adjustment of Status.

Similarly, unlawful status is tolled for a person who is lawfully admitted to the U.S. and files an Application to Adjust status. The period of time that the AOS application is pending is considered part of the non-immigrant's authorized stay. However, if the AOS petition is denied the person will begin to accrue unlawful presence.

Affect of Advanced Parole

Many applicants for Adjustment of Status and other immigration benefits qualify to apply for Advance Parole or a travel document. This document allows the person to leave the U.S. and return without affecting his or her pending application. However, the issuance of an Advance Parole document does not protection one from application of the 3/10 year bars if the person has accrued sufficient unlawful presence. For example, assume a person entered the U.S. on a tourist visa but remained in the U.S. 182 days beyond the I-94 expiration date. Further assume that this person later marries a U.S. Citizen and applies for Adjustment of Status. Although this person can obtain Advanced Parole, if he or she departs the U.S. prior to obtaining residency the 3 year bar will be applied when he attempts to return to the U.S. and he will not be admitted.

In short, Advance Parole is not a shield from the 3/10 year bar. Thus, it is important that you be absolutely sure you have not accrued 180 days or more of unlawful presence before you depart the U.S. even if you have Advanced Parole.

Unlawful Presence vs. Unlawful Status

In order to properly understand and calculate unlawful presence it is important to understand the difference between unlawful presence and unlawful status. A person who is in unlawful status does not necessarily accrue unlawful presence.

A person who is lawfully admitted to the U.S. but thereafter violates the terms of the non-immigrant status for in which they are admitted is in unlawful status. For example, an F1 student who engages in unauthorized employment is in unlawful status but does not begin to accrue unlawful presence as a result of the unlawful employment unless he has been officially adjudicated as out of status. To use another example, a person admitted as an H1B non-immigrant for a period of 3 years who switches employers without authorization after the first year is in unlawful status. However, this H1B non-immigrant will not begin to accrue unlawful presence until his 3 year period of authorized stay expires.