When You Are Accruing Unlawful Presence (Part Two)

As noted in PART ONE, it is important for a noncitizen to know whether she is unlawfully present because of, among other reasons, the 10-year-long bar to admission applies to an individual who has been unlawfully present for at least one year.

Generally, a noncitizen is unlawfully present and thus accruing time toward the 10-year (or 3-year) unlawful-presence inadmissibility bar when she has entered the US without inspection, when she has stayed past the date provided on her Form I-94 or Form I-94W, or when she has been found by DHS or an immigration judge to have violated her status. But, there are significant exceptions, some provided below, to this general rule.

For example, the following groups of noncitizens, among others, are not accruing time toward unlawful presence bars:

Noncitizens with Pending Asylum Application: Periods during which an noncitizen has a good-faith application for asylum pending do not count toward the unlawful presence bars, unless the noncitizen during such period was employed in the US without authorization. However, the INS has explained that unauthorized employment before April 1, 1997 should not count against the noncitizen.

Minors: Periods during which a noncitizen is under 18 years old do not count toward the unlawful presence bars.

Battered Spouses and Children and Victims of Trafficking: An exception to the three-year bar to inadmissibility and the ten-year bar applies to certain battered spouses and children and certain victims of trafficking. For battered spouses and children, for the exception to apply, there must be a substantial connection between the battery or cruelty and a violation of the noncitizen’s nonimmigrant visa. Victims of trafficking are exempted from unlawful presence if the trafficking was “at least one central reason for the alien’s unlawful presence.”