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Unlawful Presence: When Does It Accumulate?

19 Jul, 2023

By John Khosravi, Esq. | [email protected]

One of the most confusing aspects of immigration law is the calculation of “unlawful presence days” (UPD). JQK Law is here to offer explanation.

Calculating Unlawful Presence

The consequence of a foreign national accumulating UPD and exiting the U.S. can potentially lead to a ban on reentry. The calculation is complex, and you must be aware of various regulations and memos.

What triggers the clock for the unlawful presence is often a source of confusion. Moreover, this immigration law has harsh consequences for those who accrue unlawful presence, including three and ten-year bar. These penalties, also called unlawful presence bars, prohibit legal entry to the U.S.

The best place to study this in one place is the U.S. Citizenship and Immigration Services (USCIS) consolidated guidance memo on the topic. There are subsequent updates and re-interpretations for parts of it as well. In this article, I will go over the significant points.

I am John Khosravi, the managing attorney at JQK Immigration Law Firm, an experienced immigration lawyer and professor. JQK is a law firm that can provide tailored services to clients, helping them reach their immigration dreams.

What is Unlawful Presence for INA 212, 8 USC 1182 Inadmissibility?

Unlawful presence should not be confused with a status violation or even being out of status. Unlawful presence begins to accrue at certain times, the accumulation of these days, and exit from the U.S., leading to a ban on reentry (if up to a certain amount of days and subject to waivers).

An alien can be deemed to be unlawfully present in the U.S. if they have stayed in the U.S. after the period of stay authorized by the Secretary of the Department of Homeland Security has expired or if they have stayed without being admitted or paroled. In most cases, the authorized period of stay will expire the day following the date in the I-94 Form, Customs and Border Protection arrival/departure record. Those who want to avoid getting an unlawful presence bar should exit the U.S. on or before the departure date on Form I-94.

The 3-Year Bar

INA (Immigration and Nationality Act or the Act)section 212(a)(9)(B)(i)(I) makes inadmissible those aliens who were unlawfully present for more than 180 days but less than one (1) year and who voluntarily departed the United States before the initiation of removal proceedings for three years.

Note that the language in this section does not apply the ban to those who voluntarily depart before the 1-year mark after receiving a Notice to Appear (NTA).

The 10-Year Bar

Section 212(a)(9)(B)(i)(II) of the Act renders inadmissible those aliens unlawfully present for one (1) year or more and who seek admission within ten (10) years of the date of the foreign national’s departure or removal from the United States.

The Permanent Bar

Section 212(a)(9)(C)(i)(I) renders inadmissible any alien who has been unlawfully present in the United States for an aggregate period of more than one (1) year and who enters or attempts to reenter the United States without being admitted. 
 
The 3- and 10-year bars under section 212(a)(9)(B)(i) of the Act only apply to an alien who has accrued the required amount of unlawful presence during any single stay in the United States; the length of the alien’s accrued unlawful presence is not calculated by combining periods of unlawful presence accrued during multiple unlawful stays in the United States. Under section 212(a)(9)(C)(i)(I) of the Act, the alien’s unlawful presence is counted in the aggregate, i.e. the total amount of unlawful presence time is determined by adding together all periods of time during which an alien was unlawfully present in the United States on or after April 1, 1997.

Therefore, if an alien accrues a total of more than one (1) year of unlawful presence time, whether accrued during a single stay or during multiple stays, departs the United States, and subsequently reenters or attempts to reenter without admission, he or she is subject to the permanent bar of INA section 212(a)(9)(C)(i)(I). 

Calculating UPD: How Can Someone Accrue Unlawful Presence

What seems like a straightforward calculation is not. Exceptions exist that toll the accumulation of UPD:

1. Applicants with pending non-frivolous case filings.

A timely filed (when I-94 is valid) and pending application for extension of status, change of status, asylum, and adjustment of status will hold off the counting of UPD. Although the foreign national’s I-94 may become expired after filing and they no longer hold any valid immigration status, they are considered to be in a “period of stay authorized by Attorney General” (POSABAG). Remember: this is not “status.”

During the pendency of such an application, no UPD is accrued. However, upon denial of the decision, UPD begins to accrue from the time of denial. The UPD does not go back to the expiration date.

Moreover, filing a motion to reopen, reconsider, or Nunc Pro Tunc (NPT) request does not stop the accumulation of UPD. However, upon approval, it does clear the history.

Note that the original regulations tolled the accumulation of UPD for extension and change of status cases for up to 120 days. However, the March 3, 2000, Pearson Memo on Section 222(g) of the Immigration and Nationality Act extended the tolling for the total time until final adjudication.

2. Those admitted for duration of status (D/S).

Typically, F-1 student visa holders, but also J-1 visa holders and “non-controlled” nonimmigrants (such as Canadians B-1/B-2 visitors not issued I-94s. In these cases, a violation (such as dropping out from school) will lead to being “out of status”, but UPD accumulation does not begin unless there is a formal finding of status violation by USCIS (normally while adjudicating a request for immigration benefits) or an Immigration Judge determination of violation. UPD accrues the day after such a decision.

Note that the Trump Administration attempted to end this regulatory understanding but gave up after repeated challenges in federal court.

3. Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) holders.

During the period of obtaining these protections, the recipient will not accrue UPD. However, it does not erase previous accumulation.

4. Minors.

Minors do not accrue UPD for the 3- or 10-year bar. However, minors do accumulate UPD for the permanent bar calculations.

Waiving the Bar

Basically, the foreign national once leaving the U.S. must stay out for the 3- or 10-year period. However, before leaving a request for a Form I-601A waiver is available to some (and Form I-601 for those already out).

Recently, USCIS2 and the BIA3 (Board of Immigration Appeals) determined that a foreign national can run the 3- and 10-year bar while in the U.S. For example, if subject to the 3-year bar and the foreign national is able to reenter the U.S. with their existing B-2 visa. This exception does not apply to the permanent bar.

A waiver is also available for certain Violence Against Women Act (VAWA) self-petitioners under section 212(a)(9)(C)(iii) of the Act. The 10-year absence requirement does not apply to a VAWA self-petitioner who is seeking a waiver under section 212(a)(9)(C)(iii) of the Act, rather than seeking consent to reapply under section 212(a)(9)(C)(ii) of the Act.

Generally, there is no “waiver” of the permanent bar. However, if they can request a waiver consent to reapply for admission with Form I-212 years being outside for 10 years4. Also note that applicants applying for adjustment of status in the EB-1, EB-2, EB-3 and EB-55 preference categories can still apply even if the I-94 has expired and accumulating UPD for up to 180 days under INA Section 245(k), 8 USC 1255(k). Note that this applies to applicants that were admitted, not paroled, into the U.S.

Avoiding Bar Triggers

The key to triggering a bar is exiting the U.S. If the foreign national remains in the U.S, the bars do not come into place. However, an exception was developed under Matter of Arrabally and Yerrabelly (25 I&N Dec. 771, BIA 2012) precedent that permits advance parole travel to not trigger the 3- and 10-year bars6 but not the permanent bar. The Board of Immigration Appeals held that travel on advance parole was not a “departure” within the meaning of the statute and hence did not trigger the ground of inadmissibility that bars admission after the accrual of unlawful presence.

If you do need to leave the U.S. and trigger the bar, make sure to track the exit, such as the flight and passport stamp. Sometimes you can visit the U.S. embassy or consulate to get evidence of presence outside of the U.S.

Having Trouble With Unlawful Presence? Reach out to JQK Law

There is a way to potentially avoid three and ten-year bars. For example, provisional unlawful presence waivers allow foreign nationals to apply for waiver approval before leaving the U.S. However, they must be able to demonstrate that, if the waiver is not granted, their U.S. citizen or lawful permanent resident parent or spouse would suffer extreme hardship. That can be hard to prove, especially without a skilled immigration lawyer. 

If you have more questions on unlawful presence, don’t hesitate to contact JQK Law. We can be the guiding light in this often challenging and stressful immigration process. We aim to offer unparalleled service, as well as ensure our clients fulfill their dreams. Call us today and schedule a consultation. 

About the Author

John Khosravi is the Managing Attorney at JQK Immigration Law Firm. An experienced lawyer and professor, John specializes in cases for international couples, top talent, and corporations. As President of Immigration Lawyers Toolbox®, he’s dedicated to advancing the field through education and training. John has been featured in publications like the New York Times and received numerous “Top Attorney” awards from U.S. News and SuperLawyers.

1 USCIS Interoffice Memorandum Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act (2009) from Donald Neufeld.

2 USCIS Policy Alert PA-2022-15, June 24, 2022. Subject: INA 212(a)(9)(B) Policy Manual Guidance
https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220624-INA212a9B.pdf

3 Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023) https://www.justice.gov/eoir/page/file/1568471/download

4 As stated by the Board of Immigration Appeals (BIA) in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), the consent to reapply regulation at 8 CFR 212.2 predates the enactment of section 212(a)(9)(C) of the Act and the related consent to reapply provision in section 212(a)(9)(A)(iii) of the Act. Thus, although the filing procedures in 8 CFR 212.2 are still in effect, the substantive requirements of the provisions in section 212(a)(9) of the Act govern during the adjudication of Form 1-212, Application for Permission to Reapply for Admission into the United States After Deportation and Removal; a USCIS adjudicator must consider the specific requirements of section 212(a)(9)(C)(ii) of the Act when adjudicating Form 1-212.

5 Note that the EB-5 category was not included in the original INA 245k statute but was added in the EB-5 Reform and Integrity Act of 2022.
https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20221006-EB5ReformAndIntegrityAct.pdf

6 DHS Johnson Memo (Nov. 20, 2014), Subject: Directive to Provide Consistency Regarding Advance Parole applying to the 3- and 10-year bars.
https://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf

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