By John Khosravi, Esq. | [email protected]
One of the most confusing aspects of immigration law is calculating ‘Unlawful Presence Days’ (UPD). JQK Law is here to provide clarification on this matter.
Calculation of Unlawful Presence Duration
A foreign national’s accumulated unlawful presence in the U.S. and their departure can result in a reentry ban. This calculation is complex and requires considering various regulations and policy memoranda.
Determining what triggers the accumulation of unlawful presence days is often confusing. Additionally, this immigration law rule imposes severe penalties on individuals who accrue unlawful presence, including three- and ten-year entry bans. These penalties, also known as the “unlawful presence bar,” prevent legal reentry into the U.S.
The best resource for a comprehensive review of this topic is the relevant policy memorandum issued by U.S. Citizenship and Immigration Services (USCIS), along with subsequent updates and reinterpretations. In this article, I will cover key points.
I’m John Khosravi, the managing attorney of JQK Immigration Law Firm, an experienced immigration lawyer, and a professor. JQK is a law firm dedicated to providing personalized services to help clients achieve their immigration goals.
What Is Unlawful Presence According to INA 212, 8 USC 1182?
Unlawful presence should not be confused with a status violation or remaining in the U.S. beyond an authorized status. Unlawful presence begins accumulating at specific times, and if a foreign national departs after accruing a certain number of days, they may face a reentry ban (subject to certain waivers).
A foreign national may be considered unlawfully present if they remain in the U.S. after their authorized period of stay, as determined by the Secretary of Homeland Security, or if they stay without any unlawful admission or parole. In most cases, the authorized stay is determined by the expiration date on the I-94 form issued by Customs and Border Protection (CBP). But there are exceptions, such as if a case is pending or a person gets some types of deferred action. Those seeking to avoid the three- and ten-year reentry bars must leave the U.S. before the departure date listed on their I-94.
3-Year Reentry Bar
Section 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (INA) imposes a 3-year reentry bar on foreign nationals who have accrued more than 180 days but less than one (1) year of unlawful presence and departed the U.S. voluntarily before removal proceedings were initiated.
The language of this section does not apply the bar to individuals who voluntarily depart after receiving a Notice to Appear (NTA) but before accumulating one (1) year of unlawful presence.
10-Year Reentry Bar
Section 212(a)(9)(B)(i)(II) of the law bars foreign nationals from reentering the U.S. for 10 years if they have accrued one (1) year or more of unlawful presence and then depart or are removed from the U.S., attempting to reenter within 10 years of their departure.
Permanent Reentry Bar
Section 212(a)(9)(C)(i)(I) of the law permanently bars foreign nationals from reentering the U.S. if they have accrued more than one (1) year of unlawful presence in total and later reenter or attempt to reenter the U.S. without lawful admission (such as crossing the border without official permission).
Unlike the 3- and 10-year bars under Section 212(a)(9)(B)(i) which apply only when unlawful presence is accrued during a single stay the permanent bar aggregates all unlawful presence periods. This means that any unlawful presence accrued on or after April 1, 1997 is combined to determine if the threshold is met.
As a result, if a foreign national accumulates more than one (1) year of unlawful presence, departs the U.S., and then reenters or attempts to reenter without lawful admission, they become subject to a permanent bar under INA 212(a)(9)(C)(i)(I).
Calculation: How Does Unlawful Presence Accrue?
This seemingly simple calculation comes with many exceptions. The following situations can stop the accrual of unlawful presence:
1.Applicants with pending, non-frivolous applications.
A timely filed (while the I-94 is still valid) and pending application for extension of stay, change of status, asylum, or adjustment of status stops the accumulation of unlawful presence days. Even if the applicant’s I-94 expires during this period, they are considered to be in a “period of stay authorized by the Attorney General” (POSABAG). However, this does not mean they have lawful status.
While such an application is pending, unlawful presence does not accrue. However, if the application is denied, unlawful presence begins from the date of denial it does not retroactively apply to when the I-94 expired.
Additionally, filing a motion to reopen, motion to reconsider, or a Nunc Pro Tunc (NPT) request does not stop unlawful presence from accruing. However, if the request is approved, any previously accrued unlawful presence may be erased.
Under previous regulations, extension or change of status applications stopped unlawful presence for up to 120 days. However, the March 3, 2000 Pearson Memo on INA 222(g) clarified that this suspension remains valid until the application is adjudicated.
2. Those admitted with ‘D/S’ (duration of status) instead of a fixed period of stay.
Typically, F-1 student visa holders, certain J-1 visa holders, and sometimes Canadian citizens entering as B-1/B-2 visitors (who do not receive an I-94 as “non-controlled” visitors) fall into this category. While these individuals may become “out of status” due to violations such as dropping out of school, their unlawful presence does not begin until USCIS or an Immigration Judge formally determines the violation (usually during the review of an immigration application). The unlawful presence count starts from the day after such a determination is made.
The Trump Administration attempted to eliminate this rule, but legal challenges prevented these efforts from taking effect.
3. Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) holders.
During the period they hold these protections, unlawful presence days do not accumulate. However, these protections do not erase any unlawful presence accrued prior to obtaining them.
4. Minors.
Minors (those under 18 years old) do not accumulate unlawful presence days for the purpose of the 3- or 10-year bans. However, for the calculation of the permanent ban, minors can accumulate unlawful presence days.
Removal of the Ban (Waiver)
In general, a foreign national must remain outside the U.S. for the duration of the 3- or 10-year ban after departing. However, certain individuals may apply for a waiver using Form I-601A before leaving the U.S. (or Form I-601 for those already outside the country).
Recently, USCIS and the Board of Immigration Appeals (BIA) have ruled that a foreign national may serve the 3- or 10-year ban while remaining in the U.S. For example, if a person subject to a 3-year ban can enter the U.S. on a valid B-2 visa, the ban period may continue running while they are in the country. This exception does not apply to the permanent bar.
Additionally, a waiver under section 212(a)(9)(C)(iii) is available for self-petitioners under the Violence Against Women Act (VAWA). Unlike individuals seeking permission to reapply under section 212(a)(9)(C)(ii), VAWA self-petitioners requesting a waiver under section 212(a)(9)(C)(iii) are not required to remain outside the U.S. for 10 years.
Generally, there is no waiver for the permanent bar. However, after spending 10 years outside the U.S., an individual may request reentry by filing Form I-212. Additionally, under INA Section 245(k) (8 USC 1255(k)), individuals applying for adjustment of status in EB-1, EB-2, EB-3, and EB-5 categories may qualify if their I-94 expiration did not exceed 180 days. This applies only to applicants who were formally admitted to the U.S. (not paroled).
Avoiding the Triggering of a Ban
The most critical factor that triggers a ban is departing the U.S. As long as a person remains in the U.S., the ban does not begin. However, under the Matter of Arrabally and Yerrabelly (25 I&N Dec. 771, BIA 2012) decision, travel using Advance Parole does not trigger the 3- or 10-year ban (though it does not exempt individuals from the permanent ban). The Board of Immigration Appeals (BIA) ruled that departure with Advance Parole is not considered a “departure” under the statute and therefore does not trigger inadmissibility due to unlawful presence accumulation.
If you must leave the U.S. and the ban is triggered, it is essential to keep evidence of your departure, such as flight records or passport stamps. You may also visit a U.S. consulate or embassy to officially document your presence outside the U.S.
Experiencing Issues with Unlawful Presence? Contact JQK Law Today.
There are potential ways to prevent the three- and ten-year bars. For example, provisional unlawful presence waivers allow foreign nationals to obtain a waiver approval before leaving the U.S. However, to qualify, one must prove that their U.S. citizen or lawful permanent resident parent or spouse would suffer “extreme hardship.” This is a challenging process that often requires the assistance of an experienced immigration attorney.
If you have more questions about unlawful presence, don’t hesitate to contact JQK Law. We can guide you through this complex and stressful process. Our goal is to provide seamless service while helping our clients achieve their dreams. Call us today to schedule a consultation.
About the Author
John Khosravi is the Managing Attorney of JQK Immigration Law Firm. He is a seasoned attorney and professor, recognized for his expertise in assisting international couples, high-level talents, and corporations. As the President of Immigration Lawyers Toolbox®, he is dedicated to advancing education and expertise in the field. John has been featured in publications such as The New York Times and has received multiple “Best Lawyer” awards from organizations like U.S. News and Super Lawyers.
Schedule a consultation at JQKLaw.com/contact.
