Unlawful Presence and Inadmissibility

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

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

If you are present in the United States without being admitted to or paroled into the United States, 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, you were issued or received a Form I‑94, Arrival/Departure Record, which shows your authorized period of stay. Typically, you start accruing unlawful presence if you stay 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. Nonimmigrants admitted for duration of status generally begin accruing unlawful presence the day after their status ends, if they remain in the United States. Similarly, if you seek and are granted an extension of your immigration benefit, your I-94 should be updated to reflect your lawful presence.

The statute provides exceptions to the accrual of unlawful presence to the following noncitizens:

• Asylees and asylum applicants: Generally, time while a bona fide asylum application is pending is not counted as unlawful presence.
• Minors: Noncitizens under age 18 do not accrue unlawful presence.
• 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.
• Battered spouses and children: Self-petitioners under the Violence Against Women Act (VAWA) and their dependents do not accrue unlawful presence 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: Trafficking victims who demonstrate that a severe form of trafficking was at least 1 central reason why they were unlawfully present in the United States do not accrue unlawful presence.

These exceptions apply only to the inadmissibility grounds under INA 212(a)(9)(B)(i)(I) and (II). They do not apply to the inadmissibility grounds under INA 212(a)(9)(C)(i)(I).

In addition to these exceptions in the statute, there are also circumstances when you are no longer in a period of stay authorized, or you are present without admission or parole, but for purposes of counting your unlawful presence, you are considered to be in a period of stay authorized by the secretary of homeland security. When any of these circumstances described in the Adjudicator’s Field Manual, Chapter 40.9.2 apply, you generally are not accruing unlawful presence.

Furthermore, under Matter of Arrabally and Yerrabelly, 25 I&N Dec 771 (BIA 2012), a noncitizen who accrued more than 180 days of unlawful presence during a single stay and left is not inadmissible under INA 212(a)(9)(B)(i)(II) when they again seek admission, if they left the United States after first obtaining an advance parole document. While the Board of Immigration Appeals, in Matter of Arrabally and Yerrabelly, stated that its decision was limited to INA 212(a)(9)(B)(i)(II), the board’s reasoning in Matter of Arrabally applies equally to INA 212(a)(9)(B)(i)(I). For this reason, we apply the decision to both INA 212(a)(9)(B)(i)(I) and (II).

For more information on accruing unlawful presence, please see the section below.

If you are a noncitizen, you are not a lawful permanent resident of the United States, and no exception applies, then you are inadmissible under INA 212(a)(9)(B)(i)(I) if:

• You 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;
• You voluntarily left 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 3 years of when you left after accruing unlawful presence.

The statutory 3-year period starts when you leave the United States.

If you are inadmissible under this ground of inadmissibility, you may be eligible to apply for a waiver of inadmissibility. The legal requirements and procedures to apply for the waiver depend on the immigration benefit you seek. You are not inadmissible under this ground of inadmissibility if you accrued more than 180 days but less than 1 year of unlawful presence and left the United States after removal proceedings began, but before the 1-year mark.

However, even if you are not inadmissible under this ground of inadmissibility, you could be inadmissible under other grounds. If you leave the United States after removal proceedings begin, including voluntarily, you must inform the Executive Office for Immigration Review. If you fail to attend removal proceedings or if the immigration judge orders you removed when you are not physically present at the hearing, you could still be inadmissible, even if the reason you did not attend the removal proceedings was because you left.

If you are a noncitizen, you are not a lawful permanent resident of the United States, and no exception applies, you are inadmissible if:

• You accrued 1 year or more of unlawful presence during a single stay in the United States on or after April 1, 1997;
• You left the United States or were removed from the United States under any provision of law; and
• You again seek admission within 10 years of when you left or were removed after accruing unlawful presence.

This ground of inadmissibility applies whether you leave before, during, or after DHS-initiated removal proceedings.

The statutory 10-year period starts when you leave or are removed from the United States.

If you are inadmissible under this ground of inadmissibility, you may be eligible to apply for a waiver of inadmissibility. The legal requirements and procedures for applying for the waiver depend on the immigration benefit you seek.

You are permanently inadmissible under INA 212(a)(9)(C)(i)(I) if:

• You accrued an aggregate period of more than 1 year of unlawful presence in the United States on or after April 1, 1997;
• You then left or were removed from the United States; and
• You 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 you accumulated during all of your stays in the United States combined.

If this ground of inadmissibility applies to you, you will be permanently inadmissible.

Although you are permanently inadmissible under this ground, you may ask for permission to reapply for admission to the United States, but only if you have been physically outside the United States for at least 10 years since the date of your last departure. This permission is called “consent to reapply for admission” to the United States. You must apply for consent to reapply for admission from outside the United States after waiting 10 years from your last departure from the United States. If we deny your application for consent to reapply for admission, then you remain inadmissible under this ground. Find additional information about consent to reapply for admission on our Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal page.

There are certain exceptions and waivers that are available to specific categories of noncitizens who are inadmissible under INA 212(a)(9)(C). If an exception applies to you, then you are not inadmissible under this ground of inadmissibility. If you are eligible for 1 of the waivers and we grant the waiver, you do not need to separately file Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal.

There may be other ways to overcome this ground of inadmissibility, depending on the immigration benefit that you are applying for. See If You Are Inadmissible under INA 212(a)(9)(B)(i) or INA 212(a)(9)(C)(i)(I), below, for more information.

Whether you are inadmissible depends on the immigration benefit you are seeking. For some immigration benefits, the law may exempt you from the ground of inadmissibility.

If you are inadmissible under any ground in INA 212(a), including INA 212(a)(9)(B)(i) and INA212(a)(9)(C)(i)(I), you generally cannot obtain a visa from the U.S. Department of State, enter the United States at a port of entry, or obtain an immigration benefit such as adjustment of status to lawful permanent resident (a Green Card) in the United States unless you first obtain a waiver or another form of relief (such as consent to reapply for admission).

You can find information about some of the waivers or forms of relief on the following form pages:

• Form I-192, Application for Advance Permission to Enter as a Nonimmigrant
• Form I-601, Application for Waiver of Grounds of Inadmissibility
• Form I-601A, Application for Provisional Unlawful Presence Waiver
• Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal

You can find more information on unlawful presence in AFM Chapter 40.9.2. You can also find additional information about grounds of inadmissibility in the USCIS Policy Manual.