Period of Unlawful Presence and Unlawful Presence Bar to U.S. Visas and Entry
Unlawful presence in the United States refers to the period during which a noncitizen remains in the country without legal authorization. The accumulation of unlawful presence can have significant immigration consequences, including removal proceedingsand bars to reentry. This article outlines how unlawful presence is calculated and the legal implications for individuals who violate immigration laws.
What Constitutes Unlawful Presence?
Unlawful presence is defined as the time an individual spends in the U.S. failing to maintain a lawful immigration status,without being lawfully admitted/paroled, or violating the terms of a visa(e.g., unauthorized employment).
Period of Unlawful Presence
The way to countunlawful presence time depends on the individual's immigration status and circumstances.
Visa Overstays: Unlawful presence starts the day after the authorized stay expires as noted on the I-94 Arrival/Departure Record, unless any of the below exceptions applies.
Entry Without Inspection: Unlawful presence generally starts the day of entry into the U.S. without inspection.
Visa Violations: If a person violates the terms of their visa (e.g., unauthorized employment, ceasing to attend school), unlawful presence may start when the violation occurs, subject to U.S. Citizenship and Immigration Services (USCIS) determination.
Unlawful presence does not accrue in certain circumstances, including for:
Minors (under 18 years old)
Asylum applicants with pending cases
Individuals with properly filed and pending applications for adjustment of status or other forms of relief
Victims of trafficking (T visa holders)
Individuals with a non-frivolous change of status or extension application properly filed
Specifically, the unlawful presence calculation for change of status or extension applicants may vary depends on when the application is filed and the outcome of the request.
If an applicant files the application before his/her I-94 expires, no unlawful presence shall accrue while the application is pending. If the application is approved, the individual remains in legal status. If the application is denied, unlawful presence begins the day after the denial decision.
If an applicant files the application after his/her I-94 has expired, unlawful presence starts to accrue from the I-94 expiration date.If the application is approved,the approval shall be effective as of the date of the expiration of the prior nonimmigrant admission period andUSCIS considers that the applicant has maintained lawful status despite the gap in time between the expiration of the prior nonimmigrant admission and the date of the approval. No unlawful presence shall accrue. If the application is denied, unlawful presence starts backdating to the I-94 expiration date.
Unlawful Presence Barto U.S. Visas and Entry
Unlawful presence can lead to serious immigration penalties, primarily through bars to immigrant and nonimmigrant U.S. visas and entry to the United States under the Immigration and Nationality Act (INA).
A person who accrues more than 180 days but less than 1 year of unlawful presence and then departs the U.S. is subject to a 3-year bar from reentry.
A person who accrues 1 year or more of unlawful presence and departs the U.S. is subject to a 10-year bar from reentry.
A person who accrues more than 1 year of unlawful presence and then reenters or attempts to reenter without inspection is permanently barred from the U.S.
In addition to the bar to visas and entry, unlawful presence also prevents applicants from change or adjustment of status in the United States, even if the applicants do not depart from the United States.
Conclusion
Understanding how unlawful presence is counted and the potential consequences is essential for individuals navigating the U.S. immigration law. Whether an overstay, visa violation, or illegal entry, the consequences can be severe. However, certain waivers and relief measures may be available, so seeking legal counsel is highly recommended for those facing immigration issues.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand 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, I-485 I-130, H-1B, O, L and J cases. In the past
over twenty years, we have successfully helped over ten thousand 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, P.C.
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(03/14/2025)