Unlawful Presence

Unlawful presence occurs when a person is in the United States without being admitted or paroled or when a person is in the United States after the expiration of the period of stay authorized by the Secretary of Homeland Security.

What Are the Consequences of Unlawful Presence?

Unlawful presence can result in inadmissibility to the United States, which can be a three-year, ten-year, or permanent ban.

A three-year ban applies if an individual accrues more than 180 days (but less than one year) of unlawful presence during a single stay in the United States and voluntarily departs before DHS begins expedited removal proceedings or removal proceedings before a judge. The three-year ban period begins when the individual departs the United States.

A ten-year ban applies if one year or more of unlawful presence has been accrued during a single stay in the United States, and the individual departed or was removed by law. The ten-year ban period begins when the individual departs or is removed from the United States.

A permanent ban applies if more than one year of unlawful presence was accrued during all of an individual’s combined stays in the United States and the individual entered or attempted to reenter the United States without the permission of a DHS officer.

Assessing inadmissibility is a complicated process and often requires the help of legal counsel.

When Does Accrual of Unlawful Presence Time Begin?

A person in the United States without granted admission or parole begins accruing unlawful presence on the day they enter the country.

A person admitted or paroled into the United States by an immigration officer receives a Form I-94, Arrival/Departure Record, which specifies the date on which the immigrant must leave. In most cases, unlawful presence begins if you remain in the U.S. after this specified date. However, if you are admitted for the duration of status (D/S), you may stay in the U.S. for the entirety of your program, course of study, or temporary work assignment, including any additional authorized grace periods.

Are There Exceptions to Accruing Unlawful Presence Time?

There are exceptions to accruing unlawful presence time for:

• Asylees. Time during a pending nonfrivolous asylum application is not counted as unlawful presence.
• Minors. Those under the age of eighteen do not accrue unlawful presence.
• Family Unity beneficiaries. Individuals protected by the Family Unity program do not accrue unlawful presence.

Additionally, there are exceptions to the three-year and ten-year unlawful presence grounds of inadmissibility for battered spouses and children under the Violence Against Women Act (VAWA) and victims of trafficking.

Are There Waivers to Inadmissibility?

Even if an individual is deemed inadmissible, there are some circumstances in which a waiver can be filed.

Form I-192: Application for Advance Permission to Enter as a Nonimmigrant is for those who wish to have temporary nonimmigrant status. Generally, this waiver is for those with nonadmissible status who have the appropriate documents or are T (human trafficking) or U (certain crimes) visa applicants.

I-601 Application for Waiver of Grounds of Inadmissibility is usually for those who are inadmissible and applying for a K Visa (fiance or spouse of a U.S. citizen and their children) or V visa (certain spouses and children of lawful permanent residents), applicants for adjustment of status, and Temporary Protected Status (TPS) applicants.

I-601-A Application for Provisional Unlawful Presence Waiver is specifically for waiving the three- or ten-year ban to keep a family together. Applicants are usually immediate relatives of U.S. citizens or permanent residents.

Form I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal is for those who are inadmissible due to criminal convictions. Rehabilitation must be proven along with proof that the individual is not a national threat. The crime must have been committed over fifteen years before the application.

The legal requirements and application procedures vary depending on individual circumstances and the immigration benefit sought.

How Can an Immigration Lawyer Help With Unlawful Presence and Inadmissibility?

Maneuvering the system of unlawful presence and inadmissibility is complicated and overwhelming. Our legal team can evaluate your case, identify any grounds for exceptions or waivers, lend application assistance, and provide representation.

Every immigration case is unique, and mistakes can have severe consequences, potentially resulting in deportation or long-term bans from entering the United States. If you or someone you know is dealing with unlawful presence or inadmissibility, consulting with a qualified immigration attorney is strongly recommended to achieve the best possible outcome. Contact Scott D. Pollock & Associates for the answers you need.