What Happens To People Who Stay Unlawfully Present In The Country

When a person is unlawfully in the United States, it can lead to the denial or inadmissibility of their visa application. Currently, there are no rules that interpret the idea of unlawful presence; only what is supplied by the Department of Homeland Security.

As it stands, any foreign national admitted into the U.S. is given a non-immigrant visa or placed in parole status until a specific date. If they stay beyond this date, they’re considered being unlawfully present.  The date of expiration is found on Form I-94. A person who has not been inspected upon entering the country is also considered unlawfully present.

1 - When A Foreign National Stays Beyond The I-94 Form Date But Has A Pending Application to Extend the Stay, Are They Considered Being Unlawfully Present?

There is no accruing of unlawful presence between the original I-94 and application of stay extension approval, even when the I-94 has expired. In fact, it’s retroactive to the expiration date.  If denied, however, it does accrue while the extension application is pending. However, it must have been applied before the I-94 expired.

2 – Is It Possible To Accrue Unlawful Presence Before The I-94 Expires?

The simple answer is “Yes”, and it happens when USCIS or immigration judge concludes a status violation has taken place.  For J-1 trainee and F-1 student visa holder, typically admitted into the country for a duration of status, status violation is the only way they are unlawfully present.  Their I-94 will not have an expiration date listed.

3 – When Will Inadmissibility Occur?

A non-citizen is not admissible for three years if he/she is unlawfully present for more than 180 days but less than 365 days (one year).  Now, the 180 days of being unlawfully present must have been continuous. If they are here for 179 days, leave and come back for another 179 days of being unlawfully present, they wouldn’t be inadmissible based on it. 180 days, therefore, isn’t the same as six months.

It’s important to be accurate in counting the unlawful presence days so they don’t become barred from entering the country. The 10-year bar stipulates that non-citizens cannot be admissible for 10 years if they were unlawfully present for 12 months and looks to gain admission within 10 years of their removal from the country.

Similar to the three-year bar, any unlawful presence must have taken place in one single continuous stay. The permanent 10-year bar is applied to non-citizens who have been illegally in the country for more than 12 months and tries to constantly enter or get into the country without going through inspections. Unlike the three and 10-year bars, the date of unlawful presence is the total of all times the person was unlawfully present.

For instance: a person who was unlawfully in the country for six months, but left and came back for another six months and left again and tried to get back into the country would be subjected to the 10-year ban.

The attorney general may relinquish the inadmissibility due to the unlawful presence, and will waive it in cases where the non-citizen is the immediate family of a U.S. citizen or legal resident and has established the refusal of admission to a non-citizen as being undue hardship on the citizen.

The 10-year permanent ban could be waived but only after 10 years from the departure. The last 10 years must have been spent outside the country, documenting their residency for verification during the waiver application.