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Author: Shabnam Jain

Advocate, Company Secretary

In the context of immigration laws, the term “unlawful presence” in the United States means when a non-citizen stays in the US without proper authorization. It may be defined as a time without being admitted or paroled or when they are not in a period of stay authorised by the Secretary.

According to Section 212 (a)(9)(B)(C) of the Immigration and Nationality Act,1952 states that “individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, ten-year or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.”[1]

Therefore, a person shall be barred or inadmissible in the United States if they have accrued unlawful presence in the United States.

However, while calculating the accrual of unlawful presence, the period before April 1997 will not be included.[5]

Thus, a person will start accruing an unlawful presence in the United States from the day of expiry of the following events:

• Without admission or parole in the country;

• Without inspection and admission;

• Those who made a false claim of citizenship to obtain permission to enter.

• Expiration or cessation of parole;

Exceptions to the 3 years and 10 years Bar[6]

Concept & Distinction of Out of Status & Unlawful Presence:

Adjustments to avoid Unlawful Presence in the United States:

• An individual who is physically present with inspection in the United States after the expiry of their lawful stay is eligible to adjust its unlawful presence by marrying a person who holds the citizenship of the United States. Thereby, it will not trigger the three-years/ten year's bar and will not need a waiver for unlawful presence inadmissibility.

• An individual under the grant of parole like Temporary Protected Status (TPS) will not trigger the grounds of inadmissibility. However, this adjustment can be in the following two cases:

✓ Married to a citizen of the United States.

✓ Employment-based green card.

• DACA namely Deferred Action for Childhood Arrivals individuals can adjust their status and can obtain a green card.

• An individual who has a qualifying or immediate family member (Spouses, children and parents) in the United States and can establish hardships if the waiver is denied can overcome the grounds of inadmissibility.

• An applicant who is in the United States and is eligible to get a green card so they can adjust their unlawful period until the application is granted.

Waiver of Provisional Unlawful Presence in the United States

According to the provisions of the Immigration and Nationality Act, 1952 an individual may be eligible for a provisional waiver on certain grounds based on the number of days of accrual of unlawful presence. This waiver has been designed to encourage unlawfully present individuals to leave the United States, duly attend visa interviews and then return legally to the United States which further improves the efficiency of U.S. administration. It allows the non-citizens to request the US Citizenship and Immigration Services (USCIS) to allow a waiver before they depart from the U.S. to undertake the process of immigrant visas. It is not easy to obtain a waiver but it is not impossible either.

Here is a list of Qualifications & Disqualifications for Provisional Unlawful Presence Waiver:

List of Important Forms: Unlawful Presence in the United States:


Taking cue of the above discussions, it can be concluded that the subject matter of unlawful presence in the United States may be complex but bars to inadmissibility depends on the immigration benefit a person is seeking and therefore, the law may exempt a person from the bar. Therefore, a few months here and there will not count for unlawful presence as long as no single stay lasted 180 days or more. But it is advisable to maintain your non- immigrant status during the period of stay in the United States to avoid any confusion and immigration complexities.

Sources and Materials:

1. In Re ARRABALLY, YERRABELLY, BIA 25 I&N Dec. 771 (BIA 2012)

2. https://www.uscis.gov/legal-resources/immigration-and-nationality-act

3. Practice Advisory: Unlawful Presence and INA Act,1952

4. 2018 Edition US Citizenship and Immigration Services Regulation (USCIS)-The Law Library

5. US Immigration Law by Ekaterina Maurovalia

6. https://uscode.house.gov/view.xhtml?path=/prelim@title8/chapter12&edition=pr elim

7. A comprehensive Outline on Immigration Law Book : DC ALIA Publications, 2014


[1] https://uscode.house.gov/view.xhtml?path=/prelim@title8/chapter12&edition=prelim

[2] INA § 212(a)(9)(B)(i)(I)

[3] INA § 212(a)(9)(B)(i)

[4] Id

[5] Matter of Rodarte, 23 I&N Dec. 905 (BIA-2006)

[6] INA & 212 (a)(9)(B)(iii) for Statue

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