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What is unlawful presence?

Unlawful presence refers to the period of time when a person stays in the U.S. without authorization. This can happen when someone stays in the U.S. beyond the authorized stay of their visa or enters the U.S. without permission. Individuals who accrue more than 180 days, but less than one year, of unlawful presence during a single stay are barred from being re-admitted or re-entering the U.S. for three years; those who accrue more than one year of unlawful presence during a single stay are barred for ten years.

There are some exceptions to the accrual of unlawful presence, including:

  1. Unlawful presence that occurred prior to April 1, 1997 will not be considered.
  2. Individuals who are under the age of 18 do not accrue unlawful presence.
  3. Individuals who apply for asylum or withholding of removal do not accrue unlawful presence while their application is pending.
  4. Individuals who have filed a timely and non-frivolous application for a change of status or an extension of stay before their authorized stay expired do not accrue unlawful presence while their application is pending.
  5. Individuals who have been granted protection under the Family Unity program.

It’s important to note that the exceptions to the accrual of unlawful presence can be complex and nuanced, and each individual’s situation is unique. It’s always a good idea to consult with an experienced immigration attorney to determine how the rules apply in your specific case.