Unlawful Presence is always a headache in immigration law practice. It is confusing but essentially related to the benefits people can receive. The first thing to explore in this complex issue is to understand how it is defined. As defined in INA Section 212(a)(9)(B)(ii), unlawful presence happens in two scenarios: (1) an alien is physically present in the United States “without having been admitted or paroled”; (2) an alien physically present in the United States “after the expiration of the period of stay” previously authorized by Secretary of Homeland Security. 

1. Unlawful Status and Unlawful Presence 

Unlawful Presence differs from unlawful status. An alien is in unlawful status if he or she is in the United States without lawful immigration status either because (1) the alien never had lawful status, the same as the first scenario of unlawful presence, the alien entered the US without inspection and admission or parole; or (2) the alien’s lawful status expired or was rescinded, revoked, or otherwise terminated. Incurring unlawful status does not automatically trigger the accrual of unlawful presence. DHS may permit an alien who is present in the US unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending. The scope of unlawful presence is smaller than that of unlawful status. 

For example, A entered the US on January 1, 2019 and was authorized to stay till June 1, 2021. However, on April 1, 2020, A was laid off because his employer’s business slowed down. He has a 60-day period grace period from the date when his employment terminates, and his H1B grace period will end on May 30, 2020. If A does not depart from the US oradjust or timely change status or file an H1B transfer during his grace period, he will be in unlawful status from May 30, 2020. However, as A’s authorized stay was granted to June 1, 2021, his stay between May 30, 2020 and June 1, 2021 does not accrue unlawful presence. 

2. Different Scenarios Causing Unlawful Presence

• Fixed Authorized Stay 

For a nonimmigrant who enters the US with a visa such as B, H, L, O or TN, he/she is admitted for an authorized period of time, then unlawful presence for said alien begins to accrue on the date the authorized stay expired. This isgenerally noted on his or her Form I-94. The nonimmigrant may apply for a status extension or change before his/her authorized stay expires to avoid unlawful presence. If he/she applies for a non-frivolous EOS or COS timely and USCIS denies the application for any reason, then unlawful presence begins to accrue on the later of two dates: the date the nonimmigrant’s I-94 expired, or the date USCIS denied the request. 

• D/S Duration of Status for F, M and J

Different from the above situation, a non-immigrant admitted with F, M or J visa is granted duration of status (D/S) with no specific authorized stay expiration date. As no specific date is shown on Form I-94, the requirements of unlawful presence under INA Section 212(a)(9)(B)(ii) have no way to be met for F, M and J holders. As a result, unlawful presence did not apply for F, M and J holders, but only prior toAugust 9, 2018. Effective from August 9, 2018, a USCIS policy memoranda Accrual of Unlawful Presence and F, J, and M Nonimmigrants specifically stipulates that unlawful presence can accrue for non-immigrants with F, J and M visas. It states: (1) F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018; (2) An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

1. The day after the F, J, or M nonimmigrant no longer pursues his/her course of study or authorized activity, or the day after he or she engages in an unauthorized activity;
2. The day after completing the course of study or program;   
3. The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
4. The day after an immigration judge orders the alien excluded, deported, or removed.
   
   
   • Violation to Immigration Law and Regulations

As stated in the subsection of Duration of Status for F, M and J, a violation to immigration law can lead to unlawful presence for an F, M or J non-immigrant. When an F, M or J non-immigrant no longer pursues his/her study or authorized activity, unlawful presence will start accruing. Immigration rules differ for other nonimmigrants. 

For an H, L, O or TN non-immigrant, if his/her employment terminates before his/her period of authorized stay ends, it may cause status violation under immigration law, but he/she will not accrue unlawful presence before the period of authorized stay. 

3. Consequences of Unlawful Presence 

Unlawful Presence can lead to severe consequences, such as three-year, ten-year or permanent bar, which makes the subjected non-immigrant inadmissible to the US. Individuals who are inadmissible are not permitted by law to (1) receive an immigrant or a nonimmigrant visa to come to the US; (2) adjust status in the US to that of a lawful permanent resident; or (3) be admitted to the US at a port of entry.

• Three-Year Bar

Under INA Section 212(a)(9)(B)(i)(I), If an alien is unlawfully present in the US for a period exceeding 180 days, but less than one year, and departs the US prior to removal proceedings, then said alien is rendered inadmissible to the country for three years. This three-year bar takes into account only the days of unlawful presence accrued during a single stay.

This bar does not apply to people who accrued more than 180 days but less than one year of unlawful presence and left the US after the commencement of removal proceedings, but before the 1-year mark. Even though they are not subject to the three-year bar in this instance, they may inadmissible for other reasons (for example, the underlying reasons for their removal, such as criminal activity). They could also be inadmissible for failure to attend the removal proceedings and/or if the immigration judge orders them removed in absentia (even though they did not attend the proceeding due to their departure).

• Ten-Year Bar

Under INA Section 212(a)(9)(B)(i)(II), if an alien is unlawfully present in the US for a continuous period of one year or more and then departs the US, then said alien is thereafter rendered inadmissible to the US for ten years. The same with three-year bar requirement, the unlawful presence accrual is only for a single stay.

• Permanent Bar

An alien may be inadmissible forever under INA 212(a)(9)(C)(i)(I) if he/she accrued an aggregate period of more than 1 year of unlawful presence in the US on or after April 1, 1997, and then departed the US or wasremoved from the United States, and entered or attempted to reenter the US on or after April 1, 1997, without inspection and parole.

4. Situations in Which Unlawful Presence Does Not Accrue
   
   
   
   • Extension of Stay and Change of Status/Tolling for Good Cause

As referenced above, the INA stipulates that foreign nationals lacking lawful status do not accrue unlawful presence for a period of up to 120 days while they have an application for a COS or EOS pending with USCIS. [INA Section 212(a)(9)(B)(iv)]. To benefit from this statutory provision, aliens must meet three conditions:

1. They have been lawfully admitted or paroled into the US; and
2. Their applications for COS or EOS are timely filed and not frivolous; and
3. They are not engaging in, and have not engaged in, unauthorized employment.

USCIS’s practical implementation of this INA subsection allows the 120-day tolling period to cover the entire time during which a COS or EOS is pending, and makes the extension applicable to both the three and ten-year bars.

Example: B entered the US with B visa on January 1, 2019 and was authorized to stay till May 31, 2019. She properly filed a B extension with USCIS on April 15, 2019. USCIS denied the application on August 1, 2019. B’s stay between June 1, 2019 and August 1, 2019 does not accrue unlawful presence. Her unlawful presence accrued from August 1, 2019.

Please note, if a request for EOS or COS is denied because it was frivolous or because the alien engaged in unauthorized employment or not timely filed, unlawful presence begins to accrue on the date Form 1-94 expired. If, however, the alien was admitted for D/S, unlawful presence begins to accrue the day after the request is denied. 

Special Situation: Change Status to F-1/M-1 

If you plan to change status from B to F or M, according to USCIS’s policy, you have to apply for B extension while USCIS is processing your change of status application. Otherwise, USCIS would denied the application and the denial would lead to unlawful presence from the denial date.

For example, B is in B status and applied for change of status to F-1 within two months before his B status expires. It usually takes USCIS around 6 months to process a change of status to F-1, so B’s current status will definitely expire when USCIS adjudicates the application. In order to have the case approved by USCIS, B should maintain his legal status, such as apply for a B extension, to bridge the gap between his current B and F-1 status. 

• Adjustment of Status

If an adjustment of Status application is properly filed according to the regulatory requirements, the applicant will not accrue unlawful presence, even if it is ultimately determined that the applicant was not eligible for the benefit in the first place. The accrual of unlawful presence is tolled until the application is denied. 

Example:  C was admitted as a nonimmigrant, with a Form I-94 that expires on January 1, 2019. C remains in the United States after the Form I-94 expires. Her lawful presence started to accrue from January 1, 2019.On May 10, 2019, C properly files an application for adjustment of status. The filing of the adjustment application stops the accrual of unlawful presence. USCIS denied C’s adjustment of status on December 1, 2019. Her unlawful presence re-started to accrue from December 1, 2019.

• Minors

Children do not accrue unlawful presence while they are under age 18.

Unlawful Presence can cause huge problem. It may prevent you from re-entering the US unless you obtain a waiver, which is very hard to apply for. If you face any problem or uncertainty with related to COS/EOS and unlawful presence, we suggest you consult with an immigration lawyer for professional advice. At Zhang & Associates, our attorneys have over 20-year of experience in immigration law. We have represented thousands of similar cases and provided consulting with related to unlawful presence issue. Our experienced immigration attorneys are here to offer legal help and minimize any and all confusion or challenges. In order to contact us, please email us at info@hooyou.com or call at 713-771-8433.

Reference:

Adjudicator's Field Manual https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-17138/0-0-0-18383.html
USCIS memo: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

For more information, please click the following topics:

Change of status and extension of status

---

Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fifteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, PC.

Silicon Valley • New York • Los Angeles • Chicago • Houston • Austin

Tel:	1-800-230-7040, 713-771-8433
Email:	info@hooyou.com
website:	http://www.hooyou.com

 

(12/29/2011)