Unlawful Presence is the time period a foreign national's stay in the U.S. is not authorized by the U.S. Department of State (DOS). It accrues when one remains in the U.S. after the authorized date has expired or you entered the U.S. without being admitted or paroled by an immigration officer (e.g. sneaking across the border).
When does unlawful presence accrue?
If you have never been admitted or paroled by an immigration officer, your unlawful presence starts the day you entered the country.
If you have been admitted or paroled when entering the country, in most situations, you were given a date that authorized the legal stay in the U.S. You can check this date in your I-94, Arrival-Departure Record. With no special authorization for extra time of staying, your unlawful presence starts the day after the expiration date.
If you are in the U.S. for study or work with a duration of status (D/S) marked in your passport or I-94, unlawful presence begins accruing on the day you violate your status or the day you completed your program. This includes nonimmigrants in the following programs: Academic Student (F), Exchange Visitor (J), and Vocational Student (M) Status. For more information about the policy, please visit the official USCIS website.
What are the consequences of unlawful presence? (Bars to Admissibility)
Depending on the duration of unlawful presence, there are 3 different Bars to Admissibility:
The 3-Year Unlawful Presence Bar
If you have been in unlawful presence in the U.S. for more than 180 days but less than 1 year, you may be subject to the 3-year unlawful presence bar. This will disqualify you from obtaining any visa (immigrant or nonimmigrant) to come to the U.S. or from being admitted at a port of entry under visa waiver program for 3 years, starting from the date you voluntarily left or the date you were removed from the U.S. This bar will also prevent them you from applying for adjustment of status, unless the 3-year inadmissibility period has been fulfilled or your situation waives the ineligibility*.
The 10-Year Unlawful Presence Bar
If you have been in unlawful presence in the U.S. more than 1 year, you may be subject to the 10-year unlawful presence bar. This will disqualify you from obtaining any immigrant or nonimmigrant visa to come to the U.S. or from being admitted at a port of entry under visa waiver program for 10 years, starting from the date you voluntarily left or the date you were removed from the U.S. This bar will also prevent them you from applying for adjustment of status, unless the 10-year inadmissibility period has been fulfilled or your situation waives the ineligibility*.
The Permanent Unlawful Presence Bar
If you receive a permanent unlawful presence bar, you will be banned from ever being admitted to the U.S. in the future. The permanent unlawful presence bar applies to those who have been in unlawful presence in the U.S. for a combined total of over 1 year, and have successfully or unsuccessfully attempted to re-enter the U.S. without being admitted by a DHS officer or paroled.
Note: Unlawful presence before 4/1/1997 does not apply to the unlawful presence bar.
*There are exceptions when determining if the unlawful presence accrues. Exceptions may apply to asylees, minors, family unity beneficiaries, battered spouses and children or victims of severe forms of trafficking.
It's difficult to determine if the bar applies to you considering all the exceptions and waivers which might apply to your situation. Please seek legal advice from a board-certified immigration attorney before taking any actions. Do not use this site for legal guidance.