Unlawful presence is a very specific sort of status violation that carries serious consequences. It is not merely any status violation, like working without authorization, but one that meets a specific legal requirement. Unlawful presence can result in a bar to reentering the United States.

Congress introduced the concept of unlawful presence and the three and ten year bars to reentering the United States in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which became effective April 1, 1997.  IIRIRA provides a three and ten year bar to reenter at section 212(a)(9)(B)(i) and an often overlooked permanent bar to reenter of section 212(a)(9)(C)(i)(I).

Under 212(a)(9)(B)(i)(II), an alien who was unlawfully present in the United States for more than 180 days, but less than one year and who departs the United States before initiation of removal proceedings is inadmissible to (barred from reentering) the United States for three years.  Aliens unlawfully present in the United States for more than one year who depart the United States are inadmissible for ten years.  Because the law became effective April 1, 1997, no period in the United States before April 1, 1997 is a period of unlawful presence.  This distinction can be important for some asylum applicants and others who cured status violations before accruing six or twelve months of unlawful presence time after April 1, 1997.

An alien who has been unlawfully present in the United States for more than one year and who departs and reenters or attempts to reenter the United States without permission is subject to a permanent bar to reentry.  212(a)(9)(C)(i)(I).

It is crucial to remember that the penalties for unlawful presence do not come into force until the alien departs the United States.  While an alien who is out of status may be ineligible to adjust status and subject to other penalties, there are exceptions.  Any person who may have accrued unlawful presence should use extreme caution to evaluate the available options before deciding to depart the United States.  Once you leave, your situation changes dramatically.

What Is Unlawful Presence?

Many memos and cases offered varying interpretations of unlawful presence from 1997 to 2007.  Finally, in 2007 USCIS issued a memo that provided some guidance and observed previous court rulings, but still does not have the force of law.

The general rule is that an alien begins accruing unlawful presence if:

1. The alien is present beyond the expiration of a specific period of stay authorized by Department of Homeland Security, or
2. Present in the United States without being admitted or paroled

For an alien with permission to be in the United States, the period byond the expiration of authorized stay starts on the day after the last day of authorized stay as reflected on his I-94 card, or the day after an order or finding by an Immigration Judge that the alien's status has been terminated.

For example, an F-1 student who is granted "D/S" or "Duration of Status" as the I-94 expiration term is in violation of status if she drops out of school or falls below the minimum units required to maintain F-1 status, but she has not accrued unlawful presence.  If she remains for years without attending school, she will not accrue unlawful presence until an Immigration Judge or USCIS issues a formal determination that she is in violation of status.

Contrast this with an H-1B, L-1 or B-2 nonimmigrant.  Because H-1B, L-1 and B-2 status has an expiration date, if an alien holding this status remains beyond the specific date that the I-94 card notes as the last day of valid status, that alien will begin accruing unlawful presence on the following day.

Anyone who enters the United States without inspection is unlawfully present from the very first day they arrive in the United States.

Only persons age 18 and over accrue unlawful presence.  Children who entered the United States will not be subject to the three year bar until age 18.5 and will not be subject to the ten year bar until age 19 regardless of how long they were without lawful status in the United States before their eighteenth birthday.

It is important to note that USCIS takes the position that an application to adjust status under 245(i) (the "LIFE Act") does not waive the three or ten year unlawful presence penalties.

Is There Anything a Person Subject
to the 3 or 10 Year Bars Can Do?

Because the 3 and 10 year penalties are only imposed when a foreign national departs the United States, one solution is to apply to adjust status to permanent resident within the United States to avoid the penalty.  There are a few situations where a foreign national who is out of status (without lawful immigration status) may adjust status in the United States:

• Entered legally, but overstayed the authorized period of stay on her I-94 card and is the beneficiary of an immigrant petition filed by a US citizen spouse, parent, or child
• Entered legally, or illegally and was the beneficiary of an immigrant petition filed by a family member or employer on or before April 30, 2001 (LIFE Act) and is the beneficiary now of an immigrant petition filed by a family member or employer and has a current priority date

The other possibility is to file a waiver of inadmissibility.  A waiver of inadmissibility requires the applicant to establish that a US citizen or permanent resident spouse or parent will suffer extreme hardship if the foreign national is made to wait outside of the United States for three or ten years.  US citizen or permanent resident children are not qualifying relatives for waiver applications, but a lot of children, or children with disabilities or health problems may increase the hardship on the US spouse who must raise them alone.

Waiver applications are difficult and most applicants fail to document sufficient hardship.  The successful applicant must demonstrate that the foreign national's inability to enter the United States for 3 or 10 years will cause the hardship.  This means that the US spouse or resident will suffer extreme hardship if he remains in the United States without the foreign national, and will also suffer extreme hardship if he travels to the foreign national's country of residence and lives there.

Until now, an applicant for a waiver had to depart the United States and wait outside for months, or sometimes more than a year for USCIS to process the waiver application and issue a decision.  The Obama administration announced in January 2012 that it would change the waiver application process to allow foreign nationals in the United States to apply for an receive a "provisional waiver."  This major change will allow foreign nationals fearful of returning home to apply for the waiver from within the United States.

245(i) Does Not Waive the Unlawful Presence Bars

245(i) allows qualifying aliens to avoid being subject to the unlawful presence bars because they can adjust status without departing the US.  But what about a person who is already subject to the three year, ten year, or permanent bar because he departed and reentered after being present in the United States unlawfully?  At this time, courts hold that 245(i) does not cure or waive any of the unlawful presence bars.

The Board of Immigration Appeals decided in 2007 that 245(i) does not waive the permanent bar for unlawful presence found at 212(a)(9)(C)(i)(I).  Matter of Briones, 24 I.&N. Dec. 355 (BIA 2007).  The Ninth Circuit had previously held in 2006 that 245(i) does apply to aliens inadmissibile under even the permanent bar at 212(a)(9)(C)(i)(I).  Acosta v. Gonzalez, 439 F.3d 550 (9th Cir. 2006), but the court later revisited the decision and overruled it.  Garfias-Rodriguez v. Holder, (9th Cir. 2011).