Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a “period of stay authorized by the Secretary.” You will be found inadmissible (unless an exception applies):
Determining if you are inadmissible after accruing unlawful presence can be complex. If you need help or legal advice on immigration matters, make sure the person helping you is authorized to give legal advice. You can find information about authorized legal services on ourAvoid Scamspage.
According to section 212(a)(9)(B)(ii) of the INA, you accrue unlawful presence if:
- You are present in the United States without being admitted or paroled; or
- You have remained in the United States after the expiration of the period of stay authorized by the DHS secretary.
If you are in the United States without having been admitted to or paroled into the country by an immigration officer, then you started accruing unlawful presence on the day you entered the country without admission or parole.
In general, if you were admitted or paroled into the United States by an immigration officer, you were issued or received aForm I‑94, Arrival/Departure Record, which shows a specific date when you are required to leave. Typically, you start accruing unlawful presence if you remain in the United States after the date noted on your Form I-94. However, if you are admitted for duration of status (D/S) and your Form I-94 is marked “D/S”, then you may stay in the United States for the duration of your program, course of study, or temporary work assignment to the United States, plus any additional grace periods that may be authorized afterward.
In theAdjudicator’s Field Manual (AFM) Chapter 40.9.2 (PDF, 1017.74 KB), we outline when you are considered to be in a “period of stay authorized.” If you are in the United States maintaining lawful status,meet the requirements for an exception, or are otherwise considered to be in a period of stay authorized by the DHS secretary, then you do not accrue unlawful presence.
The law also provides exceptions for accrual of unlawful presence to the following noncitizens:
- Asylees: Time while a nonfrivolous asylum application is pending is not counted as unlawful presence.
- Minors: Children do not accrue unlawful presence while they are under age 18.
- Family Unity beneficiaries: Individuals with protection under the Family Unity program, as provided under section 301 of the Immigration Act of 1990, do not accrue unlawful presence while that protection is in effect.
The law also provides exceptions to the three-year and 10-year unlawful presence grounds of inadmissibility generally for:
- Battered spouses and children: The three-year and 10-year unlawful presence grounds of inadmissibility do not apply to self-petitioners under the Violence Against Women Act (VAWA) and their dependents if they can establish a substantial connection between the battery or extreme cruelty that is the basis for the VAWA claim and the violation of the terms of the noncitizen’s nonimmigrant visa.
- Victims of severe forms of trafficking in persons: The three-year and 10-year unlawful presence grounds of inadmissibility do not apply to trafficking victims who demonstrate that a severe form of trafficking was at least one central reason why they were unlawfully present in the United States.
These exceptions apply only to the three-year and 10-year unlawful presence grounds of inadmissibility found in INA 212(a)(9)(B)(i)(I) and (II). They do not apply to the permanent unlawful presence ground of inadmissibility found in INA 212(a)(9)(C)(i)(I).
In addition to these exceptions provided by law, there are also some special circumstances when your lawful status may have expired or you may have entered without admission or parole, but for purposes of counting your unlawful presence towards the three-year, 10-year, and permanent unlawful presence grounds of inadmissibility, you are considered to be in a period of stay authorized by the DHS secretary. When any of these circumstances described in theAdjudicator’s Field Manual, Chapter 40.9.2 (PDF, 1017.74 KB)apply, you generally are not accruing unlawful presence.
If you are a noncitizenand you are not a lawful permanent resident of the United States, you are inadmissible (unless an exception applies) if:
- You accrued more than 180 days but less than one year of unlawful presence during a single stay in the United States on or after April 1, 1997;
- You voluntarily departed the United States before DHS initiated either expedited removal proceedings under INA 235(b)(1) or removal proceedings before an immigration judge under INA 240; and
- You again seek admission within three years of your departure following your accrual of unlawful presence.
The statutory three-year period starts when you depart the United States.
You are not inadmissible under the three-year unlawful presence ground of inadmissibility if you accrued more than 180 days but less than one year of unlawful presence and left the United States after the commencement of removal proceedings, but before the one-year mark. Even if you are not inadmissible under this ground of inadmissibility, you could be inadmissible for other reasons. If you leave the United States after the commencement of removal proceedings, including voluntarily, it is your responsibility to inform theExecutive Office for Immigration Review. If you fail to attend removal proceedings and/or if the immigration judge orders you removed in absentia, you could still be inadmissible, even if the reason you did not attend the removal proceedings was due to your departure.
If you are a noncitizen and are not a lawful permanent resident of the United States, you are inadmissible (unless an exception applies) if:
- You accrued one year or more of unlawful presence during a single stay in the United States on or after April 1, 1997;
- You departed the United States or were removed from the United States under any provision of law; and
- You again seek admission within 10 years of your departure or removal following your accrual of unlawful presence.
The 10-year unlawful presence ground of inadmissibility applies whether you leave before, during, or after DHS initiated removal proceedings.
This statutory 10-year period starts when you depart or are removed from the United States.
If you are inadmissible under the three-year or the 10-year unlawful presence grounds of inadmissibility, you may be eligible to apply for a waiver of inadmissibility. The legal requirements and procedures for applying for the waiver depend on the immigration benefit you seek.
If you are a noncitizen, you may be inadmissible forever under INA 212(a)(9)(C)(i)(I) if:
- You accrued an aggregate period of more than one year of unlawful presence in the United States on or after April 1, 1997, and then departed the United States or were removed from the United States; and
- You entered or attempted to reenter the United States on or after April 1, 1997, without a DHS officer admitting or paroling you into the United States.
“Aggregate period” means the total number of days of unlawful presence that you accumulated during all of your stays in the United States combined.
If the permanent unlawful presence ground of inadmissibility applies to you, you will be permanently ineligible to:
- Receive an immigrant or a nonimmigrant visa to come to the United States;
- Adjust your status in the United States to that of a lawful permanent resident (Green Card holder); or
- Be admitted to the United States at a port of entry.
Although you are permanently inadmissible under this ground, you may ask for permission to reapply for admission to the United States, but only if you have been physically outside the United States for at least 10 years since the date of your last departure. This permission is called “consent to reapply for admission” to the United States. You must apply for consent to reapply for admission from outside the United States. If your application for consent to reapply for admission is denied, then you remain inadmissible on this ground. Additional information about consent to reapply is available on ourForm I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removalpage.
There may be other ways to overcome this ground of inadmissibility, depending on the immigration benefit that you are applying for. See the next section below entitled,If An Unlawful Presence Ground of Inadmissibility Applies To You,for more information.
Whether an unlawful presence ground of inadmissibility applies to you depends on the immigration benefit you are seeking. Depending on the immigration benefit you are seeking, the law may exempt you from the ground of inadmissibility.
If you are inadmissible due to one or more of the unlawful presence grounds of inadmissibility, you generally cannot obtain a visa from the U.S. Department of State, enter the United States at a port of entry, or obtain an immigration benefit such as adjustment of status (Green Card) in the United States without first obtaining a waiver or another form of relief (such as consent to reapply for admission).
You can find information about some of the waivers or forms of relief on the following form pages:
- Form I-192, Application for Advance Permission to Enter as a Nonimmigrant
- Form I-601, Application for Waiver of Grounds of Inadmissibility
- Form I-601A, Application for Provisional Unlawful Presence Waiver
- Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal
Untimely Motions to Reopen for Certain USCIS Denials
On June 24, 2022 we published new policy guidance in the USCIS Policy Manual concerning the effect of returning to the United States during the statutory three-year or 10-year period after departure or removal. Under this policy guidance, a noncitizen who again seeks admission more than three years or 10 years after the relevant departure or removal is not inadmissible under INA 212(a)(9)(B), even if the noncitizen returned to the United States, with or without authorization, during the statutory three-year or 10-year period.
Generally, under 8 CFR 103.5(a)(1)(i), a motion to reopen filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reopen. However, on or before December 27, 2022, you may file an untimely motion to reopen your previously denied application with USCIS on Form I-290B, Notice of Appeal or Motion, and in accordance with the form instructions and filing fee, if:
- You returned to the United States during the statutory three-year or 10-year period;
- You filed your application with USCIS after the expiration of the statutory three-year or 10-year period; and
- We denied your application on or after April 4, 2016, solely based upon inadmissibility under INA 212(a)(9)(B) and your return to the United States during the statutory three-year or 10-year period.
You should write “Return to United States during three-year or 10-year statutory period” to assist with identification and to prevent rejection for untimely filing. We will accept untimely motions to reopen that meet the requirements above. Any individual in litigation on this basis may work through the government’s representative in litigation. If your case is reopened, it will be adjudicated under the new policy guidance
You can find more information on unlawful presence in AFM Chapter 40.9.2 (PDF, 1017.74 KB). You can also find additional information about grounds of inadmissibility in the USCIS Policy Manual.
FAQs
What is inadmissibility for unlawful presence? ›
Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a “period of stay authorized by the Secretary.” You will be found inadmissible (unless an exception applies):
What are the two most common grounds of inadmissibility? ›A person is inadmissible if they have a physical or mental disorder and the behavior associated with the disorder may pose (or has posed and is likely to reoccur) a threat to the property, safety or welfare of the person or others.
What grounds of inadmissibility can be waived? ›The applicant may apply for a Waiver of Ground of Inadmissibility on Form I-601 if they have been found to be inadmissible for: (1) a crime involving moral turpitude (other than a purely political offense); (2) a controlled substance violation according to the laws and regulations of any country.
Can you be deported for unlawful presence? ›Apart from the risk of deportation, an immigrant in unlawful presence may face a 3 year bar, 10 year bar, or permanent bar from returning to the United States. Meaning, if deported, an immigrant who has unlawful presence will be prohibited from returning to the United States.
Is overstaying a visa a ground of Inadmissibility? ›If you have overstayed your visa, you may be considered unlawfully present. As per section 212 of the Immigration and Nationality Act (INA), there are two types of unlawful presence: Remaining in the United States without first being paroled or lawfully admitted.
What makes you inadmissible? ›Multiple Criminal Convictions
You fall under the multiple convictions category if you have two or more convictions. You become inadmissible for multiple criminal convictions if your sentences add up to five or more total years in prison. Sometimes, these crimes may overlap with moral turpitude crimes.
INA § 240(c)(3); 8 C.F.R. § 1240.8(a). b. Inadmissible - arriving alien: Alien has burden to prove clearly and beyond doubt that they are entitled to be admitted to the United States and not admissible as charged.
What is the success rate of waiver of inadmissibility? ›According to recent statistics from the United States Citizenship and Immigration Services (USCIS), the approval rate for I-601 Applications for Waiver of Grounds of Inadmissibility is 79.6%, with denials standing at an average of 20.4%.
How long does a waiver of inadmissibility take? ›Generally, it takes 4 to 6 months to process an I-601A waiver application.
How do I know if I am inadmissible to USA? ›You become inadmissible to the U.S. if you have been convicted of, admit to having committed, or admit having committed acts that add up to the essential elements of one of the following: A crime involving moral turpitude (other than a purely political offense) or attempting or conspiring to commit such a crime.
How do I ask for forgiveness from immigration? ›
Form I-192 is an application for a specific type of waiver used by people wishing obtain such forgiveness and enter the U.S. on a temporary, nonimmigrant basis. (It's of no use to anyone applying for an immigrant visa, otherwise known as lawful permanent residence or a green card.)
What is the waiver of inadmissibility 15 years? ›Section 212(h)(l)(A) of the Act provides for a waiver where the activities occurred more than 15 years before the date of the application if admission to the United States would not be contrary to the national welfare, safety, or security of the United States, and the noncitizen has been rehabilitated.
What is the difference between overstay and unlawful presence? ›What is “unlawful presence”? If you overstay your visa, you start to accrue unlawful presence. Unlawful presence means that you are in the United States but you don't have any immigration status. This is sometimes called being in the United States “illegally” or being “undocumented.”
Is there a waiver for unlawful presence? ›Certain immigrant visa applicants who are relatives of U.S. citizens or lawful permanent residents may use this application to request a provisional waiver of the unlawful presence grounds of inadmissibility under Immigration and Nationality Act section 212 (a)(9)(B), before departing the United States to appear at a ...
How do you waive unlawful presence? ›Once your removal proceedings are administratively closed, you can apply for a provisional unlawful presence waiver by filing Form I-601A. You must submit a copy of the immigration judge's (or the Board of Immigration Appeals') administrative closure order with your Form I-601A.
How to overcome inadmissibility to the US? ›A non-immigrant may apply for a waiver of inadmissibility by requesting one from a U.S. Embassy or Consulate with their visa application, or by applying at a U.S. port of entry and using Form I-192.
Can an overstay be forgiven? ›Can my U.S. visa overstay be forgiven? Yes, there are cases where the government will forgive your visa overstay, and you can obtain a waiver.
How does immigration know if you overstay your visa? ›If your departure date is missing or does not match up with your I-94 form, the US government will know that you have overstayed your visa. Another way that the United States can find out if you have overstayed your visa is through random checks.
What is the difference between unlawful presence and out of status? ›Very simply put, unlawful presence refers to entering illegally, while out-of-status refers to entering legally but remaining illegally. A person who is out-of-status was actually in the country validly at one point in time. Alternatively, unlawful presence simply denotes a person being in the country illegally.
What are the inadmissibility rules? ›What are the inadmissibility rules about? The Home Office say that the inadmissibility rules: “allow an inadmissibility decision to be taken on the basis of a person's earlier presence in or connection to a safe third country, even if that particular country will not immediately agree to the person's return.
What is the 10 year rule for immigrants? ›
Re-entry bars prevent immigrants who voluntarily leave the U.S. from returning legally for years. Legal re-entry bars, also referred to as “unlawful presence” bars or “three- and ten-year bars,” are punishments applied to undocumented immigrants who remain in the United States without authorization.
What is reason to believe inadmissibility? ›A person is inadmissible if immigration authorities have probative and substantial “reason to believe” that the person has ever participated in drug trafficking, or if they are the immigrant spouse or child of an immigrant drug trafficker and benefited from the trafficking within the last five years.
What is 237 grounds of inadmissibility? ›Any alien who falsely represents, or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any Federal or State law is deportable.
How to overcome inadmissibility due to misrepresentation in us? ›Can Misrepresentation Be Waived? An applicant who is inadmissible into the United States for misrepresentation of a material fact can file form 212(I) waiver. However, it is only applicable where the applicant proves that a lawful permanent resident or spouse would face extreme hardship.
What is the 10 year bar waiver of Inadmissibility? ›Persons who have accumulated one year or more of UP after April 1, 1997, and have then left the country, cannot return to the US for 10 years. Persons who illegally return to the US without seeking a waiver must wait outside the US for a period of 10 years before they can apply for a waiver.
What crimes make you ineligible for immigration benefits? ›...
What's a “Crime of Moral Turpitude”?
- Murder.
- Rape.
- Fraud.
- Animal abuse or fighting.
USCIS' decision to deny a nonimmigrant waiver is not appealable. However, the applicant may file a motion to reopen or reconsider on a denied waiver application using the Notice of Appeal or Motion (Form I-290B).
How long does it take for I-601A waiver to be approved 2023? ›The average processing time for Form I-601A is between 8.5 and 11.5 months. Make sure you carefully read the section of the Form I-601A instructions about your immigration status when applying for this waiver.
Who qualifies for a 601 waiver? ›An individual who is ineligible to be admitted to the United States as an immigrant or to adjust status in the United States, and certain nonimmigrant applicants who are inadmissible, must file this application to seek a waiver of certain grounds of inadmissibility.
What is the penalty for overstaying in US on a visa? ›Consequences of Overstaying A Visa In USA
Visa overstays may be barred from returning to the U.S. for ten years or three years depending on the period of overstay or “unlawful presence”. Visa overstays may be restricted from applying for Extension of Stay or Change of Status.
Can you adjust status if you are inadmissible? ›
E.
An adjustment of status applicant must be admissible to the United States. An applicant who is inadmissible may apply for a waiver of the ground of inadmissibility, if a waiver is available, or another form of relief.
An Expedited Removal and 5-year ban from entering the USA, is an on-the-spot deportation which is a form of instant refusal where the decision is instantly taken by C.B.P. The authority used by CBP to issue you the 5-year ban from entering the USA is under INA 235(b)(1)(A)(i).
Does a background check reveal immigration status? ›Nonetheless, many different types of information are available in a comprehensive background check. These include: Immigration or citizenship status. A background check might verify an employee's Social Security number, immigration status, or citizenship.
How many days of unlawful presence? ›When does unlawful presence cause inadmissibility. The three-year bar states that a noncitizen is inadmissible for three years if he or she was unlawfully present in the United States for a period of more than 180 days but less than 1 year. The 180 days of unlawful presence must be during one continuous period.
What to say if immigration stops you? ›Say, “I am exercising my right to remain silent.” Do not answer questions or provide any information about your immigration status or national origin. ICE can use anything you say against you. Stay calm.
Can I apply for a US waiver myself? ›While it is possible to apply for a US Entry Waiver yourself by completing Form I-192 which allows inadmissible non-immigrant aliens to request permission for temporary admittance to the United States, it is important to realize that it is a highly complex legal process that can easily overwhelm someone without ...
How do I get a 10 year ban waiver? ›To qualify for this waiver, which if approved, allows the immigrant to lawfully re-enter with the immigrant visa and not wait outside the US for 3 or 10 years, the immigrant must prove that his or her USC or LPR spouse or parent will suffer EXTREME HARDSHIP if the waiver is not approved.
Which crimes can be waived to get a U.S. visa or green card? ›- a crime involving moral turpitude (CIMT) with the exception of murder or torture.
- two or more crimes with a combined sentence of five years or more (except for murder or torture)
What is the petty offense exception to the CIMT inadmissibility ground? Generally a noncitizen who is convicted of, or formally admits committing, one CIMT is inadmissible. A noncitizen can avoid being inadmissible under the moral turpitude ground, however, by coming within the petty offense exception.
What are the consequences of unlawful presence? ›If the permanent unlawful presence ground of inadmissibility applies to you, you will be permanently ineligible to: Receive an immigrant or a nonimmigrant visa to come to the United States; Adjust your status in the United States to that of a lawful permanent resident (Green Card holder); or.
What triggers unlawful presence? ›
Unlawful presence under U.S. immigration law is defined as the period of time that a person is in the United States without being admitted or paroled, and are not in a “period of stay authorized by the Secretary [of Homeland Security].” A person accrues unlawful presence if they are in the United States without being ...
What grounds of Inadmissibility can be waived? ›The applicant may apply for a Waiver of Ground of Inadmissibility on Form I-601 if they have been found to be inadmissible for: (1) a crime involving moral turpitude (other than a purely political offense); (2) a controlled substance violation according to the laws and regulations of any country.
How much is the fee for the I-601 waiver? ›A $930 filing fee must also be paid at the time of filing for both the I-601 and I-212. The fee is nonrefundable, regardless of whether your waiver is approved or denied. Applications should be submitted to the appropriate USCIS lockbox facility.
What happens if I-601 waiver is denied? ›An I-601A Waiver Denial Could Result in Deportation
If the attorney recommends refiling, do so as soon as possible, before an NTA is issued. Refiling the I-601A does not guarantee you won't receive an NTA, but it might make your case a lower priority for deportation.
Some examples follow: Entering by means of presenting a fake passport to US immigration officials at a port of entry, such as an airport. Walking across the border in a remote area without inspection. Entering the US on a visa for which you are ineligible by providing false information.
What does inadmissibility of the case mean? ›: not able to be allowed or considered in a legal case : not admissible. The evidence was inadmissible in court.
Who qualifies for an unlawful presence waiver? ›Certain immigrant visa applicants who are relatives of U.S. citizens or lawful permanent residents may use this application to request a provisional waiver of the unlawful presence grounds of inadmissibility under Immigration and Nationality Act section 212 (a)(9)(B), before departing the United States to appear at a ...
What to do if you are inadmissible? ›- satisfy an immigration or border services officer that you meet the legal requirements to be deemed rehabilitated;
- apply for individual rehabilitation and get approved; or.
- receive a pardon or record suspension.
If you overstay your visa, you start to accrue unlawful presence. Unlawful presence means that you are in the United States but you don't have any immigration status. This is sometimes called being in the United States “illegally” or being “undocumented.” What is “illegal entry”?
What is 3 years of unlawful presence? ›Re-entry bars prevent immigrants who voluntarily leave the U.S. from returning legally for years. Legal re-entry bars, also referred to as “unlawful presence” bars or “three- and ten-year bars,” are punishments applied to undocumented immigrants who remain in the United States without authorization.
What types of evidence are inadmissible? ›
Inadmissible evidence
Forms of evidence judges consider inadmissible include hearsay, prejudicial, improperly obtained or irrelevant items. For example, investigators use polygraph tests to determine whether a person is lying about the events of a case.