Unlawful Presence

What is Unlawful Presence?

Unlawful presence (ULP) is defined as presence after the expiration of the period of stay authorized by the Department of Homeland Security, or any presence without being admitted or paroled.

What Triggers Unlawful Presence?

An individual who is present in the U.S. without inspection accrues ULP from the date of the unlawful arrival, unless she is otherwise protected from the accrual of ULP.
Similarly, an individual paroled into the U.S. will accumulate ULP once the parole is no longer in effect, unless she is otherwise protected from the accrual of ULP.
Note that an individual who obtained permission to come into the U.S. by making a knowingly false claim to U.S. citizenship has not been inspected and admitted, and thus accrues ULP from the date of arrival.
The authorized period of stay is normally either noted on the I-94, or created by statute or by USCIS policy.

What are the Consequences of Unlawful Presence?

3-Year and 10-Year Bar

Immigration and Naturalization Act (INA) section 212(a)(9)(B)(i)(I) makes inadmissible any alien who “was unlawfully present in the United States for a period of more than 180 days but less than 1 year . . . [who] again seeks admission within 3 years of the date of such alien’s departure or removal.” Also, INA section 212(a)(9)(B)(i)(II) makes inadmissible any alien who “has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s removal or departure.”

Permanent Bar

Under INA § 212(a)(9)(C)(i)(I), an individual who has been ULP in the U.S. for an aggregate period of more than one year and then enters, or attempts to enter, the U.S. without being admitted is permanently inadmissible.

Unlawful Status v. Unlawful Presence

Unlawful status and unlawful presence are related but different concepts. There are a variety of situations where a person may not be in lawful status (out of legal status), but is still not accumulating unlawful presence, such as the follows:

A minor under the age of 18 does not accrue unlawful presence for purposes of the three and ten year bars until the day after her 18th birthday.
F-1 students who are admitted for the duration of their stay do not begin to accrue unlawful presence until the USCIS or an immigration judge finds that they violated their status.
An individual with a properly filed, pending application for adjustment of status or registry does not accumulate ULP as of the date the application is properly filed. The accrual of ULP is tolled until the application is denied.
If the individual then files a motion to reopen or reconsider, the mere filing of the motion will not stop the accrual of ULP. However, if the motion is successful and the benefit granted, the individual will be deemed to not have accrued ULP during the pendency of the motion. If the motion is successful but the benefit is still denied, ULP will only accrue from the date of the last denial, as long as the initial request was timely and non-frivolous.
If the denial of the underlying petition, upon which an EOS/COS is based, is appealed to the Administrative Appeals Office, the mere filing of the appeal will not stop the accumulation of ULP. However, if the petition denial is reversed on appeal, and EOS/COS subsequently granted, no ULP will be deemed to have accrued between the denial of the petition and request for EOS/COS and the subsequent grant of the EOS/COS.
A non-immigrant with a pending EOS/COS request who departs the U.S. while the request is pending does not accrue ULP, so long as the request was timely and non-frivolous, and the individual did not work without authorization. -. An individual granted Family Unity Program (FUP) benefits under the LIFE Act Amendments of 2002 § 1504 does not accrue ULP.
An individual who files an application for Temporary Protected Status (TPS) will not accrue ULP while the application is pending provided it is ultimately approved, and the authorized period of stay will continue until TPS is terminated. If the application is denied, however, or if prima facie eligibility is not established, ULP will begin on the date the individual’s previous authorized period of stay expired.
An individual granted voluntary departure (VD) does not accrue ULP. ULP stops accruing on the date an individual is granted VD and resumes on the day after VD expires if the individual has not departed the U.S.
An individual granted an administrative or judicial stay of removal, either automatic or discretionary, does not accumulate ULP. The issuance of a stay, however, does not erase prior periods of ULP.
An individual granted deferred action does not accumulate ULP. Accrual of ULP stops on the date an individual is granted deferred action and resumes the day after deferred action is terminated. The granting of deferred action does not cure any prior periods of ULP.
An individual granted withholding of removal (or deportation) does not accrue ULP. The accrual stops on the date of the grant and continues through the period of the grant.
An individual with a pending bona fide asylum application does not accrue unlawful presence for purposes of the three and ten year bars unless he works without authorization.
A beneficiary of Family Unity Protection (FUP) under the Immigration Act of 1990 § 301 is protected from accruing ULP for purposes of the three and ten year bars. If the FUP application is approved, ULP is deemed to stop as of the date of filing. However, the filing of the FUP application by itself does not stop the accrual of ULP. Nonetheless, A grant of FUP protection does not cure prior periods of ULP.
Qualified battered spouses, parents and children are protected from accumulating ULP. An approved VAWA self-petitioner, and her children, can claim an exception from the three and ten year bars when there are substantial connections between the abuse, the ULP, and her departure from the U.S.
Victims of severe form of trafficking in persons do not accumulate ULP towards the three and ten year bars. Similar to VAWA beneficiaries, a trafficking victim must demonstrate that the trafficking was at least once central reason for the ULP.
A non-immigrant with a pending extension of status (EOS) or change of status (COS) request, according to the statute, does not accrue ULP for a period of up to 120 days for the purpose of the three year bar only, so long as: (1) the application was timely, (2) the individual was lawfully admitted or paroled into the U.S., and (3) the individual did not engage in unauthorized employment. By operation of Service policy, however, this exception has been extended to cover the entire period during which an EOS or COS is pending, and to the ten year bar.

What are Possible Reliefs of Unlawful Presence?

Waiver of the three and ten year bars

Non-immigrants who are subject to the three or ten year ULP bar may seek a discretionary waiver under INA § 212(d)(3).
An immigrant who is a spouse, son or daughter of US citizens or permanent residents, and a fiance of US citizens who is subject to the three or ten year bar may, in certain circumstances, apply for a waiver under INA § 212(a)(9)(B)(v). The waiver applicant must demonstrate that the inadmissibility would result in extreme hardship to the qualifying relative(s).
For waiver applicants seeking admission on a K-1 or K-2, the extreme hardship showing would be in relation to the K-1 non-immigrant’s USC fiance.
An asylee or refugee subject to the three- or ten-year bar can seek a waiver under INA § 209(c). The waiver is applied by Form I-602. The USCIS has discretion to grant the waiver without the application.
A TPS applicant subject to the three-year or ten-year bar may be granted a waiver for humanitarian purposes, to assure family unity, or in the public interest.

Waiver of the Permanent Bar

There is generally no waiver of inadmissibility of Permanent Bar under INA § 212(a)(9)(C)(i)(I) except certain small categories of individuals may be admitted despite the bar:

USCIS may consider waiver from a HRIFA or NACARA applicant. The waiver is applied by form I-601, the standard for adjudicating the waiver is the same as if the person filed Form I-212.
Legalization, SAW, LIFE Act Legalization, and Legalization class settlement agreement applicants may be granted a waiver based on humanitarian reasons to promote family unity or public interest. The waiver is to be applied by form I-690.
TPS applicants The permanent bar for a TPS applicant may be waived for humanitarian reasons, to ensure family unity, or because it would be in the public interest.
Qualified battered spouses, parents, and children can be granted a waiver under INA § 212(a)(9)(C)(i) if there are sufficient connections between the abuse, the ULP and departure (or removal), and the subsequent entry, or attempted entry, without inspection.

Attention: Updated Post(s) about Unlawful Presence:
02/09/2018 Post: New USCIS Memo on 2018 F1 Unlawful Presence Rules

Unlawful Presence