U.S. immigration law defines and addresses the concepts of unlawful presence and inadmissibility, which are critical factors that can significantly impact an individual’s ability to remain in or return to the United States. Unlawful presence refers to the period during which a foreign national resides in the U.S. without a lawful immigration status. This accrual of unlawful presence can trigger severe consequences, primarily inadmissibility, which bars an individual from re-entering the country for specified periods.

Detailed Consequences of Unlawful Presence:

• 180-Day to One-Year Accrual and Three-Year Ban:
  • If a foreign national accumulates between 180 days and one year of unlawful presence within the U.S., and then departs the country voluntarily or involuntarily, they will be subject to a three-year ban on re-entry.
  • This ban commences from the date of their departure from the United States.
• One-Year or More Accrual and Ten-Year Ban:
  • If a foreign national accumulates one year or more of continuous unlawful presence within the U.S., and then departs, they will face a ten-year ban on re-entry.
  • This significantly longer ban reflects the greater severity of prolonged unlawful presence.
• Permanent Bar and Waivers:
  • Attempting to re-enter the U.S. without proper authorization after accruing more than one year of unlawful presence may trigger a permanent bar to admissibility.
  • However, a waiver of this permanent bar may be available under certain conditions, typically after the individual has remained outside the U.S. for ten years.
  • The waiver is not guaranteed, and requires proving extreme hardship to qualifying relatives that are US citizens or permanent residents.

Detailed Exceptions to Unlawful Presence Accrual:

Certain categories of individuals are specifically exempted from accruing unlawful presence, recognizing their unique circumstances:

• Asylees: Individuals granted asylum in the U.S. are protected from accruing unlawful presence.
• Minors (Under 18 Years of Age): Time spent in the U.S. while under 18 years of age does not contribute to unlawful presence.
• Beneficiaries of Family Unity Programs: Individuals covered under specific Family Unity programs are exempt.
• Battered Spouses and Children: Victims of domestic violence who meet specific criteria under the Violence Against Women Act (VAWA) are protected.
• Victims of Trafficking: Individuals who are victims of human trafficking and meet the requirements for T visas are exempt.
• Those with a pending Bona Fide application: Those with a pending Bona Fide application with USCIS, that are waiting for a decision.

Determining the Start of Unlawful Presence by Duration of Status:

Determining when unlawful presence begins can be complex, especially for those admitted for “duration of status” (D/S), such as F or J visa holders. Specific guidelines exist to determine when their authorized stay is considered to have ended, triggering the accrual of unlawful presence. This includes:

• An immigration judge making a determination of a status violation.
• USCIS making a determination of a status violation during the adjudication of a benefit.
• The date the I-94 expires.

Relevant Laws, Forms, and Resources:

• Immigration and Nationality Act (INA): The INA is the primary body of law governing immigration in the U.S.
• USCIS Forms and Resources: Individuals should consult relevant USCIS forms, such as those related to waivers of inadmissibility, and utilize the resources provided on the USCIS website.
• Legal Counsel: Given the complexities of these matters, consulting with a qualified immigration attorney is strongly recommended for specific guidance.