- Introduction To Unlawful Presence In The United States
- Rules For Accrual Of Unlawful Presence
- Other Rules And Scenarios Pertaining To The Accrual Of Unlawful Presence
- Waivers For 3 And 10-Year Periods Of Inadmissibility
Accruing “unlawful presence” in the United States may render a noncitizen inadmissible to the United States, and consequently ineligible to obtain nonimmigrant visas and adjustment of status to immigrant visas. Depending on the amount of unlawful presence accrued, a nonimmigrant may be barred from attempting to reenter the United States after departing for 3 years, 10 years, or permanently (see our article on the permanent bar for more details on that subject).
On May 6, 2009, United States Citizenship and Immigration Services (USCIS) issued an important policy memorandum titled Interoffice Memorandum on the “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act” [PDF version] 1 (henceforth, “Neufeld Memo”). This memo went a long way toward explaining how unlawful presence accrues and how the 3 and 10 year bars of inadmissibility are triggered. This article will rely on that memorandum, along with relevant statutes and USCIS regulations and other listed sources, to explain the 3 and 10-year bars of inadmissibility, when unlawful presence does and does not accrue, and the limited circumstances under which someone who is subject to a 3 or 10-year bar of inadmissibility may be granted a waiver to enter the United States.
A noncitizen begins to accrue “unlawful presence in the United States” pursuant to statute when:
- He or she is physically present in the United States “after the period of stay authorized by the Secretary of Department of Homeland Security (DHS) or the U.S. Attorney General; or 2
- He or she is physically present in the United States without having been admitted to or paroled into the United States 3
Note: this definition does not include any period of time accrued before April 1, 1997. 4
An alien is subject to a 3-year period of inadmissibility to the United States if:
- He or she was unlawfully present in the United States for a period of more than 180 days and less than 1 year5
- He or she voluntarily departed6 the United States prior to the commencement of removal proceedings under INA § 235(b)(1) or INA § 2407
Persons are subject to the three-year bar if, after accruing 180 days of unlawful presence; they voluntarily depart the United States before the commencement of removal proceedings, including under a grant of voluntary departure (VD).8
If a person with more than 180 days but less than 1 year of unlawful presence departs after or at the conclusion of removal proceedings, he or she will not be subject to the 3-year bar.9 If he or she is granted VD after removal proceedings commence, he or she will not be subject to the 3-year bar.10
An alien is subject to a 10- year period of inadmissibility provided that:
- He or she was unlawfully present in the United States for 1 year or more11
Unlike with regard to the 3-year bar, the manner in which the alien left the United States is irrelevant to the 10-year bar.12 Precedent holds that the 10-year bar applies to adjustment of status applications except in limited circumstances.13
For one of the bars to be triggered, an alien must exit the United States and then attempt to reenter the United States during the period in which he or she is barred.
Note that for the 3 and 10-year periods of inadmissibility, the unlawful presence must be continuous. For example, if an alien who has accumulated less than 180 days of unlawful presence, departs the United States, reenters on a valid visa, and then overstays it, the clock on his or her unlawful presence will restart from zero at that point.
If a person who is subject to a 3 or 10-year bar is paroled into the United States, the time continues to run toward the bar's expiration. This is because entry on parole does not trigger inadmissibility.14 For example, a person in the second year of a 3-year bar who is paroled into the United States would have the time spent as a parolee counted toward the expiration of the 3-year bar.15
Should DHS commence removal proceedings against an alien while he or she is accruing unlawful stay, the accrual of unlawful stay will continue during the pendency of the removal proceedings for the purpose of the 10-year bar. The filing of a notice to appear (NTA) that commences removal proceedings has no effect on the accrual of unlawful presence pursuant to USCIS regulations.16
The statute that defines the 3 and 10-year periods of inadmissibility provides for a few narrow exceptions when unlawful presence for the purpose of the 3 and 10-year periods of inadmissibility does not accrue for purpose of triggering a 3 or 10-year period of inadmissibility. 17 In the case of all of the following forms of relief, the burden of proof is on the applicant to prove that he or she warrants an exception.18
No period of time in which a person is less than 18 years of age shall be considered in determining length of unlawful presence. 19
2. Asylum Grantees
Once a person is granted asylum, he or she is considered to be in lawful status from the date of the grant, and is issued an I-94 departure record which formalizes the status. Persons with pending asylum applications are shielded from accruing unlawful presence.20 However, engaging in unauthorized employment would begin the clock on the accumulation of unlawful presence.
3. Refugees 21
So long as an individual is admitted to the United States as a refugee, he or she does not accrue unlawful presence. However, if his or her refugee status is terminated, unlawful presence begins to accrue immediately following the date of the termination.
These same rules apply for derivative refugees. Persons already in the United States who have an I-730, Refugee/Asylee Relative Petition filed on their behalf will not accrue unlawful presence while the petition is pending, but they will begin to accrue unlawful presence immediately following the date of denial if the petition is denied. If a person who will have, or has had, an I-730 petition filed on his or her believes that he or she may have already accrued enough unlawful presence for a 3 or 10-year bar on inadmissibility, he or she should consult with an immigration practitioner if he or she is considering departing the United States during the pendency of the petition. Such persons may be barred from reentering the United States if they have already accrued enough unlawful presence.
4. Family Unity 22
No time under which an alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 will count toward accrual of unlawful presence. Please note that this exception only applies if the application for family unity protection is ultimately approved, in which case the period from the day the application was filed will not count toward unlawful presence. However, a grant of family unity protection does not excuse unlawful presence accrued prior to applying for family unity protection.
5. Battered Women and Children 23
An alien who demonstrates the following is exempted from the inadmissibility bars if he or she can demonstrate the following and demonstrate that there was a substantial connection between the following and his or her unlawful presence in the United States:
- He or she is a Violence Against Women Act (VAWA) self-petitioner;
- He or she is a victim of “battery” or “extreme cruelty” by a spouse, parent, or a member of spouse's family residing in the same household and spouse or parent acquiesced to battery or cruelty; or
- He or she is a person whose child was battered or subjected to extreme cruelty by a spouse or parent of the alien (without the alien's participation), or by a member of the spouse's or parent's family residing in the same household as the alien with the consent or acquiescence of the spouse or parent24
It is important to remember that in order for such persons to not have their periods of unlawful presence counted, the applicant must demonstrate that there was a “substantial connection” between the abuse he or she (or his or her child) received and his or her unlawful presence.
6. Victims of Severe Form of Trafficking in Persons 25
An alien who demonstrates that he or she was the victim26 of a severe form of human trafficking pursuant to section 103 of the Trafficking Victims Protection Act of 2000, and demonstrates that the trafficking was at least one central reason for his or her unlawful presence in the United States, is eligible for an exception from accrual of unlawful status.
If an alien enters the United States without inspection, the clock on his or her accrual of unlawful presence begins immediately upon setting foot on American soil. All time in EWI status is unauthorized and counts toward the accrual of unlawful presence.27
When a nonimmigrant is admitted to the United States with lawful status, his or her stay is considered authorized by the Attorney General for the duration of the authorized status period. A nonimmigrant lawfully admitted to the United States would not accrue unlawful presence until the time immediately following the period of authorized stay listed on his or her I-94 Admission Departure Form or, in most recent years, I-94 admission stamp. If the nonimmigrant's stay is governed by another document, such as a Form I-20 for a foreign student or DS-2019, “Certificate of Eligibility for Exchange Visitor (J-1) Status” for an exchange visitor, he or she is routinely admitted for “duration of stay (D/S),” and his or her I-94 form or stamp is marked accordingly “D/S”.28
Distinctions Between Being Out of Status and Accruing Unlawful Presence
The Foreign Affairs Manual (FAM) is careful to note the distinction between being “out of status” and accruing “unlawful presence.” For example, if an H-1B worker stops working for his or her sponsoring employer during his or her period of stay authorized by the Attorney General, he or she is “out of status.” However, he or she would not accrue “unlawful presence” unless he or she remained in the United States beyond the time authorized on his or her I-94 form or stamp.29 Another example is if an F-1 student admitted for D/S drops out of school and subsequently remains in the United States. He or she would be out of status, but would not accrue unlawful presence so long as USCIS or an IJ does not make a finding that he or she is out of status.30
If the nonimmigrant had applied for an immigration benefit and was found during the adjudication of the request to have violated his or her status, he or she will begin accruing unlawful presence from the earliest date between the expiration of his or her authorized period of stay indicated on I-94 Form or stamp, or the finding of violation of status made by USCIS.
The same holds true if an immigration judge (IJ) finds that a nonimmigrant visa-holder violated his or her status. However, if that finding is appealed to the Board of Immigration Appeals (BIA), the accrual of unlawful status will begin at whichever is the earliest date between the dismissal of the appeal and the expiration of the authorized period indicated on the I-94 Form or stamp.31 If the person in that situation was admitted for D/S, he or she would begin accruing unlawful presence either from the date an immigration benefit is denied by USCIS, or from the date that an IJ makes a formal finding of a status violation in exclusion proceedings, deportation proceedings, or removal proceedings.32
Individuals Admitted Without I-94 Form
Canadians and other individuals who are admitted into the United States without I-94 forms or stamps (including Visa Waiver Program (VWP) admissions) are treated as if they were admitted for duration of status, provided that they were inspected at an entry point.33 However, that position is not accepted across all US Government agencies. For example, Customs and Border Protection's (CBP's) position differs, in accordance the guidance issued by CBP, which instructs CBP officers that Canadians who were admitted without I-94 forms begin accruing unlawful presence after staying in the United States for six months.34
Nonimmigrants who file timely (that is defined by regulations as a petition physically received by USCIS before the previously authorized stay expired35) and non-frivolous petitions to extend nonimmigrant status or change nonimmigrant status are protected from accruing unlawful presence for up to 120 days while their applications are pending.36 Current USCIS practice extends the tolling period from 120 days to cover the period in which the extension of status or change of status application is pending.37
In order to be eligible for tolling, the applicant must file a timely and non-frivolous petition to extend or change status, not have worked without authorization before the application was filed, and not have failed to maintain status prior to the petition being filed.38
If a beneficiary of tolling whose duration of status or Form/stamp I-94 has expired departs the United States while his or her petition is still pending, he or she will not be subject to the 3 or 10-year bars provided that the petition was not ultimately found to be frivolous, or that he or she is not found to have engaged in unauthorized work.39
A person in the United States under the terms of parole will not accrue unlawful presence for the duration of the parole. He or she will accrue unlawful presence if he or she stays after the grant of parole expires, or if he or she violates the terms of the parole.40 If he or she was found to have obtained the grant of parole by making knowingly false claims, the parole is terminated and the entire time he or she was in the United States after being admitted as a parolee is treated as unlawful presence.41 If removal proceedings transpire while a person is in the United States under parole, unlawful presence will begin to accrue either when the parole expires or a final order of removal is issued, whichever happens first. However, if a person is in the United States on conditional/release parole,42 unlawful presence will continue to accrue.43
Grant Of Temporary Protected Status (TPS)
Individuals granted temporary protected status (TPS) are deemed to be in lawful status for purposes of changing or adjusting status. However, a grant of TPS does not excuse unlawful presence accrued prior to the grant of TPS. Persons on TPS who accrued at least 180 days of unlawful presence should consult with an immigration practitioner if they intend to depart the United States, since they may be subject to a bar of inadmissibility.44 Such persons may be eligible to be granted waivers to enter the United States; however, those waivers do not cure inadmissibility for the purpose of adjustment of status. At the same time, following recent Board of Appeal's (BIA) interpretations, traveling on TPS related Advance Parole should not trigger the inadmissibility bar since such travel is not considered a “departure” required to trigger the unlawful presence bars.45
Individuals granted voluntary departure (VD)46 are shielded from accruing unlawful presence provided that they leave the United States in compliance with the grant. Only the period between the grant of voluntary departure and the expiration of the grant is shielded from accrual of unlawful presence. If the individual remains in the United States after the departure period, he or she will begin to accrue unlawful presence unless he or she was approved for a 30-day extension of authorized stay in which to complete the departure.47
If an IJ refuses a grant of VD, but the BIA later disagrees on appeal, the period between the IJ's refusal and the BIA's decision will also not count toward accrual of unlawful presence. However, if VD is reinstated by the BIA or by IJ proceedings that were opened for the purpose of a grant of VD, the period between the expiration of the grant and the IJ or BIA reinstating the VD will count toward the accrual of unlawful presence.
Please note that if an application for a grant of VD is denied by USCIS, it may not be appealed.48
If a Federal Court grants a stay of the VD period, the individual will not accrue unlawful presence so long as the stay is in effect. However, for any grant of VD by the Executive Office of Immigration Review (EOIR), the filing of a petition for review by the grantee with the relevant U.S. Court of Appeals terminates the grant of VD. In that scenario, the alien would have 30 days after filing the petition to leave the United States without accruing unlawful presence.49
If an alien files a motion to reopen proceedings after being granted VD by an IJ or the BIA, he or she will accrue unlawful presence until receiving a final order of removal or a stay of removal, and he or she will be considered to have accrued unlawful presence as if he or she had never been granted VD.50
If an individual admitted under the Visa Waiver Program (VWP) is granted satisfactory departure by Immigration and Customs Enforcement (ICE), and leaves during the requisite period, he or she is deemed to have not violated his or her VWP admission. Thus, unlawful presence does not accrue during the satisfactory departure period unless the grantee violates his or her satisfactory departure grant. In the case that the alien is found to have violated the satisfactory departure grant, unlawful presence begins to accrue the day after the individual is ordered to leave the United States.
A grant of stay of removal by the DHS, or Executive Office for Immigration Review (EOIR), or a Federal Court, shields the grantee from the accrual of unlawful presence from the day of the grant and for as long as the grant is in effect. If an individual is ordered removed in his or her absence,52 and he or she then files a motion to reopen, he or she will not accrue unlawful presence while the motion is pending.53,54
A grant by DHS of deferred action, including Deferred Action for Childhood Arrivals (DACA), will shield the grantee from accruing unlawful presence so long as the grant is valid. It will not excuse prior unlawful presence or unlawful presence after the grant is no longer valid.55
If an alien is granted withholding or deferral of removal, he or she will not accrue any unlawful presence through the period of the grant.
Persons Granted Cancellation Of Removal Or Suspension Of Deportation 56
Legal Permanent Residents (LPRs) granted Cancelation of Removal at any time subsequent to their acquisition of LPR status will retain their LPR status, and no period of unlawful presence will have accrued.
Noncitizens who were never LPRs, and who were then granted Cancelation of Removal, will be forgiven for any periods of unauthorized presence they may have accumulated prior to the grant of the Cancelation of Removal.
The same rules apply to persons who were granted suspensions of deportation.57
Since an order of supervision from DHS is not considered to be presence authorized by the Attorney General, an order of supervision does not prevent the accrual of unlawful presence.58
Certain persons who are subject to 3 and 10-year periods of inadmissibility due to accrual of unlawful presence may be eligible for waivers of inadmissibility. This section will take a look at the three grounds a person may obtain a waiver provided that he or she is eligible.
If an applicant for admission who is subject to a 3 or 10-year bar of inadmissibility appears to a consular officer to be eligible for a waiver of the bar of inadmissibility, regulations instruct the consular officer to inform the applicant for admission of the procedures for applying for the appropriate waiver of inadmissibility.59
Waiver By The Attorney General And Special Scenarios In Which Adjustment Of Status Is Authorized Despite The Bar
By statute, a person subject to the 3 or 10-year bar may file an I-601, Application for Waiver of Grounds of Inadmissibility form from outside the United States requesting that the Attorney General issue a waiver of the inadmissibility bar. The Attorney General may waive the 3 or 10-year period of inadmissibility provided that:60
- The applicant is the spouse, son, or daughter of a United States citizen or lawfully admitted permanent resident (LPR); and
- The applicant establishes that refusal of admission would result in extreme hardship to his or her citizen or LPR spouse or parent(s)
If a person is in the United States and subject to a 3 or 10-year bar of inadmissibility (e.g., he or she entered the United States under TPS, a U-visa, or was paroled into the United States), he or she may file a I-601 Form from inside the United States if he or she is doing so in conjunction with an application to adjust status, rather than to seek an immigrant visa at a U.S. consulate abroad.61 USCIS provides specific information on where and how to file an I-601 waiver application in conjunction with adjustment of status.
Of note, the Attorney General's decision whether or not to grant this waiver is purely discretionary, and as such, non-reviewable by any court.
USC or LPR children cannot serve as qualifying relatives for purposes of the waiver.62 However, factors having to do with children in those situations may support a case for “extreme hardship” for the children's USC or LPR parent (the spouse of the applicant seeking the waiver) who serves as a qualifying relative for the purpose of the waiver application. Current regulations do allow persons subject to either the 3 or 10-year bars, and who are eligible for V visa status, to change to V status or seek V visas (nonimmigrant V visas are reserved for a small number of spouses of LPRs, or the unmarried children of LPRs under the age of 21, whose immigrant visa applications had been subjected to long waiting periods).63
Neither the 3 nor 10-year bar of inadmissibility precludes eligibility for adjustment of status in narrow cases under either section 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) or section 902 of the Haitian Refugee Immigration Fairness Act (HRIFA).
Applicants who have immediate relatives in the United States may apply for a provisional unlawful presence waiver, which allows them to have their request for a waiver pre-adjudicated before leaving the United States in order to subsequently reenter under a lawful status. Please refer to our full article on provisional stateside unlawful presence waivers for more details.
An asylee or refugee subject to a 3 or 10-year bar of inadmissibility may nevertheless be still eligible for admission.64 Asylees and refugees must file a Form I-602 application for the waiver, unless the filing requirement is waived by a USCIS adjudicator.65
TPS applicants who are subject to a 3 or 10-year bar of inadmissibility may apply for a waiver to enter the United States. The waiver may be granted for humanitarian purposes, to assure family unity, or if granting the waiver would be in the public interest. The waiver request is filed on a Form I-601.66
The waiver for TPS applicants does not by itself allow the person on TPS to apply to adjust status since the waiver is not based on “extreme hardship.” In order to apply for adjustment of status, the recipient of the TPS waiver would have to file a new Form I-601 to overcome specific grounds of inadmissibility that would prevent adjustment of status.67
- Memo, Neufeld, Scialabba, and Chang, USCIS Interoffice Memorandum, “Consideration of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act,” (May 6, 2009)
- INA § 212(a)(9)(B)(ii)
- See Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006)
- INA § 212(a)(9)(B)(i)(I)
- Whether or not pursuant to INA § 244(e)
- INA § 212(a)(9)(B)(i)
- AFM at 40.9.2(a)(4)(C)
- I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. (ALIA Publications 14th ed. 2014) 116
- Id., citing; AFM at 40.9.2(a)(4)(C)
- Kurzban 116, citing H.R. Conf. Rep. 104-821, 104th Cong. 2d Sess. At 207.
- Kurzban 116, citing Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006) supra at 908
- AFM 40.9.2(a)(4)(E)
- Kurzban 117, citing Letter, Divine, GC USCIS to Berry (July 14, 2006) and Letter, Melmed, GC, USCIS to Horne (Jan 26, 2006)
- 8 CFR § 239.3
- INA § 212(a)(9)(B)(iii)
- Kurzban 121, citing Cable, DOS, No 98-State-060539 at ¶26 (Apr. 4, 1998), published on ALIA InfoNet at Doc. No.98040490
- INA § 212(a)(9)(B)(iii)
- INA § 212(a)(9)(B)(iii): “No period of time in which an alien has a bona fide application for asylum pending under INA § 208; 8 U.S.C. 1158 shall be taken into account in determining the period of unlawful presence in the United States”
- INA § 212(a)(9)(B)(iii)
- INA § 212(a)(9)(B)(iii); citing INA 212(a)(6)(A)(ii), but substituting “violation of the terms of alien's nonimmigrant visa” for “unlawful entry into the United States”
- INA § 212(a)(9)(B)(iii)
- 22 U.S.C. 7102
- Kurzban 117, citing AFM at 40.9.2(b)(1)
- AFM 40.9.2(E)(i), AFM 40.9.2(E)(ii)
- AFM 40.9.2(a)(2)
- AFM 40.9.2(E)(i)
- AFM 40.9.2(E)(ii)
- AFM 40.9.2(b)(1)(E)(iii).
- Letter, Davis, Acting Ex. Director, CBP to AILA (Apr. 10, 2013)
- See Neufeld Memo, citing 8 C.F.R. § 103.2(a)(7); 8 C.F.R. § 214.1(c)(4); 8 C.F.R. § 248.1(b)
- Neufeld Memo, citing INA § 212(a)(9)(B)(iv)
- Neufeld Memo
- Kurzban 120
- Kurzban 120, citing INA § 236
- Kurzban 120, citing AFM 40.9.2(a)(3)(D)
- Kurzban 119, citing AFM 40.9.2(b)(3)(M)
- In Re ARRABALLY, YERRABELLY, BIA 25 I&N Dec. 771 (BIA 2012)
- INA § 240(B)
- AFM 40.9.2(b)(3)(H)
- Neufeld Memo
- 8 C.F.R. § 217.3, 8 CFR § 1003.23(b)(4)(ii)
- Pursuant to INA § 240(b)(5)(A)
- Neufeld Memo, citing INA § 240(b)(5)(C)
- Kurzban 119, citing AFM 40.9.2(b)(3)(I)
- Kurzban 119, citing AFM 49.9.2(b)(3)(J)
- INA §. 240A(a); INA § 245A(b)
- INA §. 212(c).
- 8 C.F.R. 241.5
- 22 C.F.R. 40.92
- INA § 212(a)(9)(b)(v)
- See INA 245(i) for statutory rules regarding adjustment of status
- 8 C.F.R. § 214.15
- See INA § 209(c) for the applicable statute
- Neufeld Memo, citing AFM Ch. 41.6
- Neufeld Memo, citing 8 C.F.R. § 244.3
- Neufeld Memo
Resources and materials:
INA § 212(d)(3); 8 U.S.C. § 1182(d)(3).
INA § 212(a)(9); 8 U.S.C. § 1182(a)(9)
INA §. 249.5
INA § 209(c)
INA §. 240A(a)
INA §. 245A(b)
22 U.S.C. 7102
8 CFR § 1003.23(b)(4)(ii).
8 CFR § 212.2
8 CFR § 239.3
22 C.F.R. §40.92
Matter of Briones, 24 I & N Dec. 355 (BIA 2007).
Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006).
In Re ARRABALLY, YERRABELLY, BIA 25 I&N Dec. 771 (BIA 2012)
16. Memo, Neufeld, Scialabba, and Chang, USCIS Interoffice Memorandum, “Consideration of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act,” (May 6, 2009)
AFM 40.9; AFM 40.9.2(a)(4)(C).
DOS Cable 98-State-060539.
Letter, Acting Ex. Director Davis (April 10, 2013).
Cervantes-Ascencio v. INA 326 F.3d 83, 85-86 (2d Cir. 2003).
Practice Advisory: Unlawful Presence and INA §§ 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I): A summary of the May 6, 2009 Interoffice Memorandum from Donald Neufeld, Lori Scialabba, and Pearl Chang revising the Adjudicator's Field Manual. By Laura L. Lichter and Mark R. Barr.
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 116-120, Print. Treatises & Primers.