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Unlawful Presence and Immigration Bars

Last updated: January 15, 2025

Critical Immigration Consequence

Unlawful presence can trigger 3-year or 10-year bars preventing return to the U.S. Understanding these rules is essential before departing the United States.

What is Unlawful Presence?

Unlawful presence occurs when an individual is in the United States without being admitted or paroled, or remains beyond their authorized period of stay. It is distinct from being "out of status" and has specific consequences under immigration law.

Unlawful presence begins accruing the day after an individual's authorized stay expires, unless they are in a protected category or have filed a timely application to extend or change status.

You accrue unlawful presence when:

  • Present in the U.S. without being admitted or paroled
  • Present after the expiration of authorized stay
  • Present after failing to maintain status (unless in grace period)
  • Present while removal proceedings are pending (with limited exceptions)

The 3-Year Bar

Triggering Conditions

  • Accrued more than 180 days but less than one year of unlawful presence
  • Departed the United States voluntarily before removal proceedings
  • Subject to 3-year bar starting from date of departure

3-Year Bar Details

The 3-year bar applies to individuals who accrued 180 days to less than one year of unlawful presence and then departed. The bar begins on the date of departure and lasts for 3 years.

The 10-Year Bar

Triggering Conditions

  • Accrued one year or more of unlawful presence
  • Departed the United States (voluntarily or through removal)
  • Subject to 10-year bar starting from date of departure

10-Year Bar Details

The 10-year bar applies to individuals who accrued one year or more of unlawful presence before departing. This is the most severe unlawful presence consequence.

Exceptions to Unlawful Presence

Unlawful presence does NOT accrue for:

  • Individuals under 18 years of age
  • Asylum seekers with bona fide applications pending
  • Victims of severe trafficking (T visa applicants)
  • Crime victims with U visa applications pending
  • VAWA self-petitioners with pending applications
  • Students and exchange visitors in authorized grace periods

Important Note on Exceptions

Exceptions must be properly documented and established. Simply having a pending application may not automatically stop unlawful presence accrual - timing and eligibility matter.

Calculating Unlawful Presence

1

Determine Entry Date

Identify when you last entered the U.S. and your authorized status

2

Find Status Expiration

Locate I-94 expiration date or end of authorized stay

3

Account for Grace Periods

Subtract any applicable grace periods (F/J students, etc.)

4

Exclude Exception Periods

Remove time periods when unlawful presence doesn't accrue

5

Calculate Total Days

Count total days of unlawful presence to determine bar applicability

6

Identify Bar Period

Determine if subject to 3-year or 10-year inadmissibility bar

Grace Periods

F and J students have grace periods after program completion. H-1B workers may have brief grace periods. These don't count toward unlawful presence if properly maintained.

Complex Calculations

Unlawful presence calculations can be complex, especially with multiple entries, status changes, and pending applications. Legal consultation is often necessary.

Available Waivers

I-601A Provisional Waiver (for unlawful presence only)

For immediate relatives with only unlawful presence inadmissibility - allows waiver application from within the U.S.

I-601 Waiver (for multiple grounds of inadmissibility)

For cases with multiple grounds of inadmissibility including unlawful presence - typically filed from abroad.

I-212 Permission to Reapply (after removal/deportation)

Required for individuals with removal orders who also have unlawful presence issues.

Cancellation of Removal (in immigration court proceedings)

Available in immigration court for long-term residents with qualifying relatives and good moral character.

Prevention Strategies

Avoiding Unlawful Presence

  • 1Monitor I-94 expiration dates and authorized stay periods carefully
  • 2File timely applications for extensions or changes of status
  • 3Understand grace periods and their limitations for your status
  • 4Seek legal advice before traveling if you have accrued any unlawful presence
  • 5Consider I-601A provisional waiver if eligible before departing the U.S.

Special Situations

Multiple Entries

Each period of unlawful presence is calculated separately. Multiple short periods don't typically combine, but pattern matters for discretionary decisions.

Adjustment vs. Consular Processing

Unlawful presence generally doesn't bar adjustment of status for immediate relatives of U.S. citizens, but triggers bars if they leave the country.

Critical Warnings

Important Cautions

  • Never leave the U.S. without understanding your unlawful presence accrual
  • Bars are triggered by departure - staying in the U.S. doesn't activate them
  • Waivers require extreme hardship to qualifying relatives and aren't guaranteed
  • Get legal advice before making any decisions that could trigger bars

Official Resources

USCIS Unlawful Presence Guide(opens in new tab)I-94 Arrival/Departure Record(opens in new tab)USCIS Policy Manual - Unlawful Presence(opens in new tab)I-601A Provisional Waiver(opens in new tab)