Unlawful Presence and Bars to Admissibility

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 may be barred from reentering the United States for:

  • 3 years, if you 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 you depart 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 bars in the Immigration and Nationality Act (INA) section 212(a)(9)(B)(i)(I) and (II) (the 3-year and 10-year unlawful presence bars) and INA 212(a)(9)(C)(i)(I) (the permanent unlawful presence bar).

Determining if an unlawful presence bar applies to you can be complex. If you need help or legal advice on immigration matters, make sure the person helping you is authorized to give legal advice. You can find information about authorized legal services on our Avoid Scams page.

Accruing Unlawful Presence

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 Secretary of Homeland Security (the 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, that 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 the 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 afterwards.   Please read the Policy Changes to Unlawful Presence for Nonimmigrants in Academic Student (F), Exchange Visitor (J), and Vocational Student (M) Status section below to learn how unlawful presence is counted for academic and vocational students and exchange visitors as of Aug. 9, 2018. 

In the Adjudicator’s Field Manual (AFM) Chapter 40.9.2, USCIS outlines 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 Secretary, then you do not accrue unlawful presence.

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

  • 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.
  • 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.
  • 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 found in INA 212(a)(9)(B)(i)(I) and (II). They do not apply to the permanent unlawful presence bar 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 3-year, 10-year, and permanent unlawful presence bars, you are considered to be in a period of stay authorized by the Secretary. When any of these circumstances described in the Adjudicator’s Field Manual, Chapter 40.9.2 apply, you generally are not accruing unlawful presence.

The 3-year Unlawful Presence Bar

If you are a foreign national and you are not a lawful permanent resident of the United States, you may be inadmissible for 3 years 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; and
  • 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.

This 3-year inadmissibility period starts when you depart or are removed from the United States. 

During this 3-year inadmissibility period, you are not eligible to:

  • Receive an immigrant (permanent) visa or a nonimmigrant (temporary) visa to come to the United States;
  • Adjust your 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.

This bar does not apply to you if you accrued more than 180 days but less than 1 year of unlawful presence and left the United States after the commencement of removal proceedings, but before the 1-year mark. Even if you are not subject to the 3-year bar in this instance, you could be inadmissible for other reasons (for example, the underlying reasons for your removal, such as criminal activity). You could also be inadmissible for failure to attend the removal proceedings and/or if the immigration judge orders you removed in absentia (even though you did not attend the proceeding due to your departure). If you leave the United States after the commencement of removal proceedings, it is your responsibility to inform the Executive Office for Immigration Review.   

The 10-year Unlawful Presence Bar

If you are a foreign national and are not a lawful permanent resident of the United States, you may be inadmissible for 10 years if:

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

The 10-year unlawful presence bar applies whether you leave before, during, or after removal proceedings.

This 10-year inadmissibility period starts when you depart or are removed from the United States.  During this 10-year inadmissibility period you are not eligible to:

  • Receive an immigrant or a nonimmigrant visa to come to the United States;
  • Adjust your 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.

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

The Permanent Unlawful Presence Bar

If you are a foreign national and you are not a lawful permanent resident of the United States, you may be inadmissible forever 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, and then departed the United States 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 the permanent unlawful presence bar applies to you, you will be permanently ineligible to:

  • Receive an immigrant or a nonimmigrant  visa to come to the United States;
  • Adjust your 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.

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 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. If your application for consent to reapply for admission is denied, then you remain inadmissible on this ground. Additional information about consent to reapply is available on the Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal page.

There may be other ways to overcome this bar, depending on the immigration benefit that you are applying for. Go to the If An Unlawful Presence Bar Applies To You section below for more information.

Policy Changes to Unlawful Presence for Nonimmigrants in Academic Student (F), Exchange Visitor (J) and Vocational Student (M) Status

On Aug. 9, 2018, USCIS published a policy memorandum (Unlawful Presence and F, J, and M Nonimmigrants) that updated AFM Chapter 40.9.2(b)(1)(E) 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, 2018 and 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 statuson 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).

Note: If USCIS relies solely upon information provided in the Student and Exchange Visitor Information System (SEVIS) to make an unlawful presence determination, the applicant will be given an opportunity to rebut evidence provided in SEVIS before a final decision is made.

If an Unlawful Presence Bar Applies to You

Whether an unlawful presence bar applies to you depends on the immigration benefit you are seeking. Depending on the immigration benefit you are seeking, the law may exempt you from the bar.

If one or more of the unlawful presence bars applies to you, 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 (Green Card) in the United States without first obtaining a waiver or another form of relief.

Whether a waiver or other form of relief is available to you depends on the immigration benefit that you are seeking. You can find information about some of the waivers or forms of relief on the following form pages:

More Information about Unlawful Presence and the Bars

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 (PDF, 129 KB).

ADDITIONAL INFORMATION

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