Unlawful Presence and Inadmissibility

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 a Form 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 the Adjudicator’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 the Adjudicator’s Field Manual, Chapter 40.9.2 (PDF, 1017.74 KB) apply, you generally are not accruing unlawful presence.

If you are a noncitizen and 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 the Executive 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 our Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal page.

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

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.