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What is Unlawful Presence?

 Unlawful status relates to whether the person has violated the terms of the status granted.

Unlawful presence generally relates to a person staying beyond the time period authorized by DHS upon entry or in the course of a change/extension of status unless DHS authorizes the stay.

   How could one accumulate unlawful presence?

  • If an individual was unlawfully present in U.S. between 180 days and one year and left the country voluntarily or before the proceedings he is inadmissible to the U.S. for three years.
  •  If an individual was unlawfully present for more then a year he is inadmissible to the U.S. for ten years even he was granted voluntary departure.

    Has the person been Unlawfully Present?

  • *Removal proceedings in themselves have no impact on whether an individual is accruing unlawful presence.
  • *If a Student was admitted for Duration of Status (D/S) he/she is not considered to be in an unauthorized stay until an immigration judge or USCIS has made a determination regarding his/her status.
  • *The same is true for Canadians who did not receive I-94 but were inspected at the border.
  • *Conditional Permanent Residents accrue unlawful presence from the date he/she fails to timely file an I-751 (marriage) or I-829 (investor) petition to remove condition.

   Unlawful presence does not accrue when:

  • Individuals are granted voluntary departure
  • Individuals on TPS status
  • Individuals are not given I-94
  • Individuals with pending adjustment of status
  • Individuals granted withholding of Removal
  • Individuals granted CAT
  • Individuals granted cancellation of Removal
  • Time when Alien was under 18
  • Time when bona fide application for Asylum is pending (exception working without EAD)
  • Individuals subject to family unity protection
  • Battered women and children

New Policy Memorandum

On August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) published a revised final policy memorandum with guidance relating to the accrual of unlawful presence for F and M nonimmigrant students, and J nonimmigrant exchange visitors.

According to the new policy  students and exchange visitors will begin accruing unlawful presence on the earliest of the following:

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;

• The day after completing the course of study or program, including any authorized practical training, plus any authorized grace period;

• The day after the Form I-94 expires; or

• The day after an immigration judge orders them excluded, deported or removed (whether or not the decision is appealed)

Examples of unlawful presence

According to the new policy guidance USCIS can deem the following situation trigger the unlawful presence:

• Dropping below the required full course of study (12 semester/quarter hours for undergraduate programs) without authorization from a PDSO/DSO for a reduced course load. This can be due to failure to attend class(es) or dropping a course, or advice from an academic advisor to ultimately finish a program but without checking with the international student office.

• Taking more than one class or 3 credits of online courses toward the full course of study requirement (12 semester/quarter hours for undergraduate program).

• Taking online courses for ESL program.

• Working more than 20 hours during school year under CPT or OPT.

• Changing jobs to an employer who is not enrolled with E-Verify for STEM OPT.

• Failure to report to the international student office during the registration period.

• Failure to complete coursework on time for graduation and failure to obtain authorization from international student office to defer graduation and program completion date.

• Accepting more than 12 months of CPT and OPT at the same education level.

Who needs a waiver?

Scenario One

  1. An alien who was unlawfully present in the U.S. for more than 180 days but less than 365 days;
  2. Voluntarily departed the U.S. prior to the commencements of the proceedings (under grant of voluntary departure or threat of deportation); and
  3. Seeks an admission to the U.S. within 3 years of alien's departure.

Scenario two

  1. An alien who was unlawfully present in the U.S. for one year or more; and
  2. Seeks an admission to the U.S. within 10 years of alien's departure.

The three and ten year bars are not “triggered” until the person actually departs the country. So if a student who entered on a valid visa, overstayed for a lengthy period of time, then got married to US citizen, he/she is eligible to adjust their status. Such person will be able to avoid triggering the unlawful presence ground of inadmissibility because he/she can adjust their status without departing.

Similarly, someone who was unlawfully present for more than a year before gaining TPS status has not run out the bar after being in lawful TPS status for ten years.

INA 212(a)(9)(B)(v) authorizes waver for unlawful presence. The individual can apply for Visa Waiver on Form-601, Application for Waiver of Grounds of Inadmissibility. See I-601 Waiver for requirements.

No waiver of unlawful presence is available for the following individuals:

  • Persons committed murder, espionage or sabotage, international child abduction
  • Terrorists
  • Unlawful voters
  • Former citizens who renounced citizenship to avoid taxes
  • Persons knowingly making a frivolous application for asylum


If a person has been unlawfully present for more than a year after April 1, 1997, leaves, and subsequently enters or attempts to enter without being inspected, the person is not only inadmissible under INA §212(a)(9)(C)(i)(l), but is ineligible to apply for a waiver for ten years from the date of next departure.  Similarly, if the person has been removed or departs under an outstanding order for removal including prior to April 1, 1997, and subsequently enters or attempts to enter without inspection after April 1, 1997, the person is inadmissible under INA §212(a)(9)(C)(i)(ll) and ineligible to apply for a waiver for ten years from the date of next departure.  Most of the unlawful presence exceptions apply to “9C,” the one exception that does not apply is time accumulated as a minor. Even a child who is unlawfully present more than a year who departs and re-enters without inspection will be found inadmissible under 9C.  After the person spends ten years outside the US, he or she is still inadmissible, but becomes eligible to apply for a waiver.

If you or someone you know has been unlawfully present in the United States, contact Immigration Attorney Irina Vinogradsky to hear about your options!

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