Accrual of Unlawful Presence

Unlawful presence in the U.S. may have horrible consequences to an alien who is applying for a green card. If he/she is required to go abroad to process his/her visa, he/she may not be able to return for years.

What constitutes unlawful presence and when does it accrue? Are all aliens who are out of status considered to be unlawfully present?

A comprehensive guidance memo released by the United States Citizenship and Immigration Services (USCIS) provides some answers to the above questions.

Unlawful presence generally starts accruing when a person overstays his/her authorized stay in the U.S. as indicated on the date stamped on the I-94 card. The I-94 is the arrival/departure record issued to the individual at the port of entry based on the underlying non-immigrant visa. But there are instances when unlawful presence does not begin to accrue until a determination is made by the USCIS.

An F-1 student whose I-94 card is marked D/S or duration of status does not begin to accrue unlawful presence even if the student failed to maintain F-1 status, either by dropping out of school or enrolling in less than the required credits, until the USCIS makes an adverse determination on his/her status. This may happen if the F-1 holder later applies for a change of status or for an employment authorization but is denied. An overstaying Canadian TN visa holder will also not start accruing unlawful presence until there is an adverse determination on his/her status by the government.

Also, unlawful presence does not accrue while a timely and non-frivolous application for change of nonimmigrant status or extension of status is still pending, provided that the applicant did not engage in unauthorized employment.

An H-1B holder who was terminated from the job but remains in the U.S. within the date stamped on the I-94 while considered out of status still has not accrued unlawful presence until after the expiration date on the I-94.

There are persons who are in unlawful status but do not accrue unlawful presence. They include minors under 18; asylees with a bona fide application for asylum unless they are employed without authorization; certain battered spouses, parents and children and victims of severe trafficking.

If a person is unlawfully present for more than 180 days but less than one year, he/she would be barred from re-entering the U.S. for three (3) years. If the unlawful presence is for one year or more, he/she would be barred for ten (10) years.

If a person is unlawfully present for an aggregate period of more than one (1) year and he/she re-enters or attempts to re-enter without being admitted, he/she would be barred permanently.

For the three-year bar to take effect, a person must have voluntarily left the U.S. prior to the commencement of removal proceedings and sought admission within three years from such departure. If his/her departure from the U.S. occurs after removal proceedings are commenced, he/she would not be subject to the bar.

The three-year period could refer to stays outside or inside the U.S. In one case, an applicant for adjustment of status who departed the U.S. and then came back with an advanced parole was no longer inadmissible at the time of the adjudication of his/her adjustment of status application because three years had already passed since his last departure.

In the case of the ten-year bar due to unlawful presence of one year or more, the inadmissibility requirements are different. The bar applies even if the person leaves the U.S. after the commencement of removal proceedings. His/her departure from the U.S. does not have to be voluntary and it could be the result of a removal order.

Both the 3-year and 10-year bars to inadmissibility may be waived. A person who is permanently barred may also seek consent to reapply for admission after having been outside the U.S. for at least ten years.