Unlawful presence in the United States is perhaps the most widely known among the grounds of inadmissibility or denial of visa application. There are no regulations interpreting the concept of unlawful presence. All we have are policy statements from the Department of Homeland Security. Generally speaking, a foreign national who is admitted to the United States on a nonimmigrant visa or in parole status until a certain date and who remains in the United States past the expiration date is unlawfully present. The expiration date is indicated on Form I-94. One who enters the United States without inspection is unlawfully present as well.

Is the foreign national considered out of status when the expiration date on Form I-94 has expired, but he has a pending application for extension of stay? Unlawful presence does not accrue during the gap between the original I-94 and the approval of an application for extension of stay, even if the application was filed after the original I-94 expired. The approval is retroactive to the date of the expiration of the previous status. If the application for extension is ultimately denied, unlawful presence does accrue while the application for extension was pending. Provided, however, that the application for extension was filed before the I-94 expired and it is not frivolous or unworthy of serious attention.

Can unlawful presence accrue even before the expiration of the I-94? The answer is “Yes”. This happens when the immigration judge or USCIS determines that there was a status violation such as accepting employment while on a visitor/tourist visa. The unlawful presence begins to accrue as of the date the order, whether or not the decision is appealed. For F-1 student and J-1 trainee visa holders, who are normally admitted to the United States for duration of status or D/S, violation of their status is the only way they can become unlawfully present. That is because their I-94 does not indicate the date when their status will expire.

When does unlawful presence cause inadmissibility. The three-year bar states that a noncitizen is inadmissible for three years if he or she was unlawfully present in the United States for a period of more than 180 days but less than 1 year. The 180 days of unlawful presence must be during one continuous period. Therefore, if one is unlawfully present in the United States for 179 days, then left, reentered, and was unlawfully present for another 179 days, he or she would not be inadmissible based on unlawful presence. It is important to know that 180 days is not the same as six months. One needs to be precise in counting the days of unlawful presence in order to avoid being barred from returning to the United States. The 10-year bar states that the noncitizen is inadmissible for ten years if he or she has been unlawfully present for one year or more AND again seeks admission within 10 years of the date of his or her departure or removal from the United States. Like the 3-year-bar, the unlawful presence must have occurred during a single continuous stay in the United States. The permanent 10-year bar applies to a noncitizen who has been unlawfully present in the United States for an aggregate period of more than one year, and who enters or attempts to re-enter the United States without being inspected or admitted. Unlike the 3- and 10-year bars, the period of unlawful presence is the aggregate of all periods of unlawful presence. For example, one was unlawfully present in the United States for six months, then left, reentered and was unlawfully present for another six months, then left and attempted to reenter without inspection. The foreign national is subject to the permanent 10-year bar.

The good news is the Attorney General may waive inadmissibility due to unlawful presence. For the 3- or 10-year bars, the Attorney General may waive inadmissibility if the noncitizen is the spouse or son or daughter of a U.S. citizen or legal permanent resident and it is established that the refusal of admission to such noncitizen would result in extreme hardship to the citizen or legal permanent resident spouse or parent. The permanent 10-year bar may be waived as well but the noncitizen must wait for 10 years from the date of last departure from the United States before he or she can apply for the waiver. The prior 10 years must be spent outside the United States. They should document their residency outside the United States because this is crucial evidence when they apply for the waiver.   The waiver is filed through the I-601 form.

Unlawful presence is to be distinguished from unlawful status. There are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. USCIS may permit a foreign national who is present in the United States unlawfully, but who has a pending application that stops the accrual of unlawful status, to remain in the United States while the application is pending. In this sense, the foreign national’s stay can be “authorized”. However, the fact that the foreign national does not accrue unlawful presence does not mean that his/her presence in the United States is actually lawful. For example, a foreign national was admitted as a nonimmigrant, with Form I-94 that expires on February 1, 2011. On June 1, 2011, he properly files an application for adjustment of status. He does not, however, file any extension for his nonimmigrant stay, which expired on February 1, 2011. The adjustment of status application is still pending on August 1, 2011. On this date, he becomes subject to removal because he remained in the U.S. after the expiration of his nonimmigrant admission. For purposes of future inadmissibility, however, the pending adjustment application protects him from the accrual of unlawful presence. If no removal proceedings were initiated before the adjustment of status was adjudicated and approved, then well and good. DHS is not likely to initiate removal proceedings against foreign nationals with pending adjustment of status.