What Is Unlawful Presence, When Does it Start, and What are Its Consequences?

Unlawful presence is defined in Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (INA) to mean that an alien is deemed to be unlawfully present in the U.S. if the alien is (1) present after the expiration of the period of stay authorized by the Secretary of Homeland Security or (2) present without  being admitted or paroled.

What is Unlawful Presence and When Does it Start?

For most individuals, the period of stay authorized is noted on their I-94 card and they will begin to accrue unlawful presence the day following the dated in their I-94 card.  Additionally, if USCIS finds (while adjudicating an application for immigration benefit) that the individual has violated their nonimmigrant status, unlawful presence will begin the day after USCIS denies the benefit (or after the I-94 expires, whichever is earlier).

Example:  Mr. Smith enters the U.S. using H-1B visa and is admitted into the U.S. Port of Entry with I-94 validity until November 20, 2023.  Assuming he remains in the U.S. and does not file for a timely extension or change of status, he will be considered unlawfully present as of November 21, 2023.

For nonimmigrants admitted for duration of status, or “D/S” (generally F students or J exchange visitors), unlawful presence will begin only when USCIS denies a request for immigration benefit if USCIS finds a status violation.

Example:  Ms. Jones enters the U.S. using F-1 student visa and at the port of entry she is given I-94 card marked as “D/S”.  Assuming she does not apply for an immigration benefit which is denied due to failure to maintain status, she will not begin to accrue unlawful presence even if she otherwise stops maintaining valid F-1 status.

Distinction Between Being Out of Status and Unlawful Presence

It is important to draw one very important distinction which, unfortunately, creates confusion (and often, unnecessary worry) among foreign nationals.   Unlawful status and unlawful presence are related, yet separate concept (one must be in present in an unlawful status in order to accrue unlawful presence, but being in unlawful status alone does not necessarily mean there is unlawful presence and that the 3/10 year bans are triggered).

As discussed, unlawful presence is defined in INA to mean that an alien is deemed to be unlawfully present in the U.S. if the alien is (1) present after the expiration of the period of stay authorized by the Secretary of Homeland Security or (2) present without  being admitted or paroled.   On the other hand, unlawful status may mean a violation of a previously valid status.

For example, Mr. Smith, while within his November 20, 2023 H-1B I-94 validity period, leaves his employer on June 1, 2023 and overstays the 60-day post-termination of employment grace period normally given to H-1B workers.   Mr. Smith will no longer be in valid status as of August 1, 2023 (after the 60-day grace period); however,  as discussed in the example above, the unlawful presence will not begin until November 21, 2023.

Consequences of Unlawful Presence:  3/10 Year Bans

Unlawful presence carries the possibility of 3 or 10 year bans.   INA Sections 212(a)(9)(B)(i)(I) and 212(a)(9)(B)(i)(II) set terms of the bans resulting from unlawful presence.

The 3-Year Ban:  More than 180 Days But Less Than One Year Unlawful Presence.   For the three year bar to apply, the individual must have accumulated at least 180 days, but less than one year, of unlawful presence, and then voluntarily departed the U.S. prior to the commencement of removal proceedings. There is no requirement for a formal grant of voluntary departure.

The 10-Year Ban:  More than One Year Unlawful Presence.  An individual who is unlawfully present for more than one year and then either voluntarily departs the U.S. or is ordered removed from the U.S. is subject to a 10-year ban.

Less than 180 Days of Unlawful Presence.  There is no ban if the unlawful presence is less than 180 days.  However, the individual’s visa (if still valid) is considered to be automatically invalidated and the individual will always have to disclose and explain the unlawful presence when applying for any new U.S. visa(in the DS-160).  Also, the individual is required to apply for any subsequent visa at the U.S. Consulate in their home country.

Common Scenario of Accidental Unlawful Presence

While some individuals intentionally and knowingly overstay their authorized period of stay, there is a significant number of nonimmigrants who find themselves unlawfully present and, possibly, subject to the 3 or 10 year bans.  The most common scenario we have seen is when an individual is admitted into the U.S. with a passport which expires significantly earlier than the anticipated validity of stay.

Travelers who are in the U.S. pursuant to a petition with a certain expiration date, such as H-1B, L-1, etc., normally are admitted into the U.S. with I-94 card validity equal to the petition expiration (plus 10 days grace period).  For example, H-1B petitions are normally issued with a validity of three (3) years and when an H-1B worker travels to the U.S., he or she would expect that upon entering the U.S., the CBP agent would provide a Form I-94 with expiration date equal to the H-1B expiration date plus ten (10) days.  However, if the passport used for entry has an expiration date which is before the petition expiration date, CBP, by regulation, should issue a Form I-94 card with expiration date equal to the passport expiration.

Unfortunately, CBP often does not provide a warning and many people do not realize that their I-94 period of authorized stay has been shortened due to their passport validity.  This is how many people end up being unlawfully present and often this is well more than 180 days or even a year, resulting in potential bans.   Please see this article for details on the I-94 card validity at the port of entry.   We always recommend individuals check their I-94 card validity of stay after each U.S. entry.

Conclusion

Please note that this brief overview seeks to provide a general description of the concepts of unlawful presence and to underscore the important implications it may have on one’s immigration status.  We urge our readers to contact us or to seek another professional’s help if there are specific questions or concerns regarding unlawful presence or possible bans.

Our office has been able to successfully help many foreign nationals, in a variety of visa types, in either having their I-94 cards corrected or extended.  Please do not hesitate to contact us if we can be of any help or book a phone consultation.   Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.