When You Are Accruing Unlawful Presence (Part One)

A noncitizen is unlawfully present in the US if she is present after the period of stay authorized by the Department of Homeland Security expires or if she is present without having been admitted or paroled.

It is important for a noncitizen to know whether she is unlawfully present because, among other reasons, a deportability ground makes an individual deportable if she is unlawfully present and because a 3-year bar to admission apply to an individual who has been unlawfully present for at least 180 days.

Generally, a noncitizen is unlawfully present when she has entered the US without inspection, or when she has stayed past the date specified on the Form I-94, or when she has stayed past the date on the Visa Waiver Arrival Departure Document, or when she has been found by DHS or an immigration judge to have violated her status. However, there are significant exceptions, some referenced below, to this general rule.

The following noncitizens are not unlawfully present in the US and therefore are not accruing time toward the toward the unlawful-presence bars of inadmissibility:

Extension of Stay/Change of Status: For noncitizens who have applied for extension of stay or change of nonimmigrant classification and who have stayed in the US after expiration of the Form I-94 while awaiting a decision on the application, the period in which the application is pending is considered to be an authorized stay, if (a) the application was later approved; or (b) the application was denied or the noncitizen departed while the application was pending, the application was timely filed, the application was not frivolous, and the noncitizen did not work without authorization before or during the pendency of the application.

Adjustment of Status: For noncitizens who have properly filed a timely application for adjustment of status, the period the application was pending, even if the application is later denied or abandoned, is an authorized stay, if the noncitizen did not file for adjustment after being served with a notice to appear for removal proceedings.

Temporary Protected Status: For noncitizens covered by TPS, the period for which the noncitizen has been granted TPS is an authorized period of stay.

Parolees: A noncitizen who has been paroled into the US is not considered to be unlawfully present. When a noncitizen remains in the US beyond the period of stay authorized, unlawful presence accrues from the date the parole authorization expired (unless the parole was terminated or revoked before the date it was due to expire).

DACA Recipients: The period for which the noncitizen has been covered by DACA protection is an authorized period of stay.

Voluntary Departure: The period that DHS, an immigration judge, or the BIA grants a noncitizen during which the noncitizen must leave the US is an authorized period of stay.