How to Calculate Unlawful Presence?
Updated on 03/18/2023
If you enter the United States without proper permission, or if you overstay your visa by remaining in the USA beyond the date listed on your I-94, you could be subject to inadmissible bars for being unlawfully present and thus ineligible for any nonimmigrant or immigrant visa, green card, and cannot otherwise be admitted through a point of entry of the United States.
Unlawful presence can lead to penalties that can increase progressively according to the amount of time that you have been present in the United States without permission. You can calculate unlawful presence in different ways, depending on your particular situation. Knowing how to calculate your total period of unlawful presence can help you to address your inadmissible bar from the United States.
What is the definition of unlawful presence?
According to the Immigration and Nationality Act (INA), unlawful presence is the amount of time that you have been present in the U.S. without being admitted or paroled, or the time that you are living in the United States during a “period of stay authorized by the Secretary.” Someone could be subject to an inadmissible bar based on unlawful presence even if they were first admitted to the United States on a valid nonimmigrant visa. Once the visa expires, an alien is expected to exit the USA in a timely manner. Otherwise, they may be considered unlawfully present because they overstayed their authorized time in the United States.
Another form of unlawful presence can begin on the date that an alien crosses a border to the United States without permission from the Department of Homeland Security (DHS). This is often referred to as an illegal entry.
Both types of unlawful presence, overstay and illegal entry, can subject an alien to penalties in the form of bars to admissibility, whether for a few years or permanently. This area of immigration law can be highly individualized a complex; therefore; it is often wise to enlist the help of an experienced legal professional who is well-versed on the unlawful presence laws in the United States.
How to accrue unlawful presence?
The method for determining unlawful presence in the United States for purposes of figuring out whether an inadmissible bar applies depends on the type of visa, if any, that the aliens used to enter the United States. In many circumstances, an individual who entered the country illegally, that is without being admitted or paroled, would begin accruing their unlawful presence days right away.
Persons who have first entered the USA generally have a date listed on their I-94, Arrival/Departure Record that indicates the last day that they may remain validly in the United States.
Sometimes the I-94 does not include a date; however, but instead says “D/S.” Those who have a D/S on their I-94 record can remain in the U.S. for the duration of their program, course of study, or temporary work assignment. Grace periods often are tacked onto such periods, as well. For aliens with D/S status, if USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs.
Aliens who are not issued a Form I-94 (like Canadian B1/B2), are treated as aliens admitted for D/S for purposes of determining unlawful presence.
Who does not accrue unlawful presence?
There are some exceptions to the unlawful presence inadmissible bar. An alien may be exempt from calculating unlawful presence, at least for a period of time. Here we list the most common circumstance that an alien do not accrue unlawful presence:
- Asylum Applicants: The period of time while a bona fide asylum application is pending does not count as accrued unlawful present.
- Minors: Youth under the age of 18 do not accumulate days of unlawful presence while they are still minors.
- Family Unity Beneficiaries: Section 301 of the Immigration Act of 1990 states that some aliens can receive protection from deportation under the Family Unity program. Such persons do not accrue unlawful presence while that protection is in effect.
- Battered Spouses and Children: The Violence Against Women Act (VAWA) applies to battered spouses and their children. Self-petitioners for lawful permanent residency under VAWA do not accrue any days of unlawful presence if they can demonstrate a nexus between their being unlawfully present and the domestic abuse.
- Victims of Severe Forms of Trafficking: When an alien has been a victim of human trafficking, they may avoid being subject to the inadmissible bar. Such persons will need to demonstrate to the Department of Homeland Security that a severe form of trafficking was at least one central reason why they were unlawfully present in the United States.
- I-730 Beneficiary: The period of time while a bona fide filed I-730 petition is pending does not accrue unlawful presence.
- I-485 Applicants: The period of time while a properly filed I-485 adjustment of status application is pending does not accrue unlawful presence.
- Tolling Aliens: The period of time while a timely and non-frivolous filed Requests for Extension of Status (EOS) or Change of Status (COS) (“Tolling”) application is pending does not accrue unlawful presence.
- TPS Applicants: The period of time while a prima facie filed Temporary Protected Status (TPS) applicant is pending does not accrue unlawful presence.
It is important to note; however, that just because an alien falls under an exception to the unlawful presence laws today, does not mean that they will always be exempt from being unlawfully present in the United States. For example, once a youth has reached the age of 18, they may begin to accumulate days of unlawful presence if they have not applied for, or acquired, a valid immigration benefit.
To qualify for an unlawful presence exemption under VAWA or human trafficking benefits, the alien still needs to provide USCIS with evidence that they are eligible. If such petitions are denied by USCIS, then the alien may begin accruing days of unlawful presence in the United States.
Additionally, even if an alien can demonstrate that they fall under an exception to the unlawful presence laws, this exemption only applies to nonpermanent inadmissible bars. If their accrued unlawful presence makes them liable for a permanent bar, their qualification for an exception will not prevent them from being deported from the United States.
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Types of Inadmissible Bars
The penalty for being unlawfully present in the United States without any type of exemption or excuse can be as severe as an inadmissible bar from the USA. This bar based on unlawful presence can be for several years, for an entire decade, or even for the rest of an alien’s life.
3-year Bar to Admissibility Because of Unlawful Presence
If aliens had accumulated 180 days but less than one year of being unlawfully present in the United States after April 1, 1997, their departure from the United States will trigger a three-year inadmissible bar.
Example 1
An alien entered the United States with B2 visa on January 1, 2020. His I-94 was expired on July 1, 2020. He overstayed 7 months in the United States and left on February 1, 2021. He accrued unlawful presence from July 2, 2020 till February 1, 2020, which is more than 180 days. The three-year inadmissible bar would apply to him, because he has been unlawfully present in the United States for more than 180 days but less than one year before he left the United States.
10-year Inadmissible Bar after Unlawful Presence in the USA
The ten-year inadmissible bar may be applied to aliens who are unlawfully present in the United States for one year or more after April 1, 1997. This decade-long unlawful presence bar only applies to those who have accrued one year or more of continuous, unlawful presence in the USA immediately before they leave the USA.
Example 2
A F1 student’s I-20 expired on June 1, 2020. She timely filed an I-539 application requesting USCIS to change her F1 status to B2 status on July 1, 2020, which was during 60-day grace period. USCIS denied her I-539 application on March 1, 2021. She didn’t leave the USA until April 1, 2022. She is subject to 10-year inadmissible bar because she started to accrue unlawful presence from March 2, 2021 until April 1, 2022 which is more than one year.
3-year Bar and 10-year Bar Are Not Counted in the Aggregate for Multiple Stays
The 3-year bar and 10-year bar only apply to an alien who has accrued the 180 days and more of unlawful presence during any single stay in the United States. If, during any single stay, an alien has more than one period during which the alien accrue unlawful presence, the length of each period of unlawful presence is added together to determine the total period of unlawful presence time accrued during that single stay.
Example 3
An alien entered the USA with B2 visa on January 1, 2020. Her I-94 indicated she was authorized to stay in the USA until July 1, 2020. She left the USA on September 1, 2020. During this stay, she accrued 2 months of unlawful presence. On June 1, 2021, she visited the USA with B2 visa again. This time, she obtained an I-94 valid for one month only. She overstayed for 5 months and left the USA on December 1, 2021. Although she accrued 2 months of unlawful presence during the first stay and 5 months of unlawful presence during the second stay, she is not subject to 3-year inadmissible bar because 3-year bar only applies to any single stay.
Example 4
An H-1B alien worker was laid off on April 1, 2018. His H-1B I-94 expired on September 30, 2020. He filed an I-485 application based on marriage on November 30, 2020 but the I-485 finally gets denied by USCIS on December 30, 2021. He left the USA on May 30, 2022. He is subject to 3-year bar because his total unlawful presence period in the USA is 7 months, namely the period from the expiration of H-1B I-94 to the filing date of I-485 application plus the period from the denial date of I-485 to the date on which he left the USA.
Permanent Bar After Being Unlawfully Present in the U.S.
The most severe of the unlawful presence penalties, the permanent inadmissible bar, applies to any person who attempts to enter the U.S. without admission or parole by a DHS officer after having accrued a total of one year or more of unlawful presence, at any time from April 1, 1997 to the present. Here, unlawful presence is calculated in the aggregate, meaning each period of unlawful presence is added together with any other times that an individual has been unlawfully present. Those who become barred from the United States forever can never again receive a nonimmigrant or immigrant visa to come to the USA, cannot adjust their status to a green card, and cannot otherwise be admitted through an American point of entry.
Example 5
An alien has been barred from the United States for three years, because they had accrued 11 months of unlawful presence. After the three years are up, they reenter the United States and overstay their visa by 2 months. Now the total period of unlawful presence is counted as 11 + 2. After two months of unlawful presence the second time, they exit the United States. Now, if they attempt to enter the United States without a valid visa, a DHS officer could bar them from the USA for life. They were unlawfully present in the U.S. for more than one year in the aggregate, and they tried to cross into America without being admitted or paroled by a DHS officer.
Overcoming Grounds for Inadmissibility
If you have become subject to an inadmissible bar, you are likely justifiably worried. Fortunately, there are methods for gaining a waiver from the U.S. government, so that you can overcome the grounds of your inadmissibility after overstaying your visa or entering the USA unlawfully.
Some ways to avoid an inadmissible bar are to apply under an unlawful presence exception, such as the Family Unity program or VAWA. Other methods for obtaining a waiver of your inadmissibility are to prove extreme hardship or unlawful presence through no fault of your own. If you can convince USCIS that you should not be penalized for your unlawful presence in the United States, you could avoid an inadmissible bar from the USA.
Overcoming grounds for inadmissibility can be a complex and arduous task that should not be taken lightly. It often requires the assistance of a competent and experienced immigration attorney.
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