When Does Unlawful Presence Begin — And Why It Matters
When Does Unlawful Presence Begin — And Why It Matters
Understanding when unlawful presence begins is one of the most important aspects of U.S. immigration law. Even a short period of unlawful presence can have serious consequences, including being barred from reentering the United States for years. For many immigrants, confusion about dates, visa terms, and status changes can lead to unintended violations.
At Jeffrey Y. Bennett Law, we can provide legal assistance to immigrants to the United States who are concerned about maintaining lawful status or addressing periods of unlawful presence.
What Is Unlawful Presence?
Unlawful presence refers to time spent in the United States after a person’s authorized period of stay has expired or after entering without inspection. It is different from simply being “out of status,” although the two are sometimes related.
Unlawful presence is important because it can trigger immigration penalties under federal law. Specifically:
- More than 180 days but less than one year of unlawful presence can result in a three-year bar from reentering the United States.
- One year or more of unlawful presence can result in a ten-year bar from reentry.
These bars typically apply once a person leaves the United States.
When Does Unlawful Presence Begin?
The start date of unlawful presence depends on how a person entered the country and their immigration history.
After a Visa Overstay
If you entered the United States with a visa and were given a specific expiration date on your I-94 record, unlawful presence generally begins the day after that authorized stay expires.
For example, if your I-94 states that your stay ends on June 1, unlawful presence typically begins on June 2 if you remain in the country without an approved extension or change of status.
Entering Without Inspection
If someone enters the United States without being inspected or admitted by immigration authorities, unlawful presence may begin immediately upon entry.
However, certain protections or pending applications could affect how unlawful presence is calculated.
After a Status Violation
In some cases, a person may violate the terms of their visa (for example, by working without authorization). Depending on the situation, unlawful presence may begin:
- On the date of the violation, or
- On the date an immigration judge or USCIS formally determines that a violation occurred.
These distinctions can significantly affect whether the three- or ten-year bar applies.
Special Rules and Exceptions
There are important exceptions and special considerations in unlawful presence calculations.
Minors
Time spent in the United States while under 18 years old generally does not count toward unlawful presence for purposes of the three- and ten-year bars.
Pending Applications
In some situations, a properly filed and pending application (such as an extension of stay or adjustment of status) may pause the accrual of unlawful presence, depending on eligibility and timing.
DACA and Other Protections
Certain forms of relief or temporary protections may impact how unlawful presence is treated. Each case must be reviewed carefully to determine how time is calculated.
Why Unlawful Presence Matters
Unlawful presence can affect:
- Eligibility for adjustment of status (green card applications)
- Consular processing abroad
- Future visa applications
- Waiver eligibility
- Removal proceedings
For example, someone who overstays and later marries a U.S. citizen may still face complications if they leave the country before resolving their status. In other situations, a waiver may be required to overcome a reentry bar.
Misunderstanding when unlawful presence began — or how much time has accrued — can lead to long-term immigration consequences.
How Legal Guidance Can Help
Determining unlawful presence is not always straightforward. The analysis may require reviewing:
- Entry documents and I-94 records
- Visa classifications and expiration dates
- USCIS notices and decisions
- Immigration court records
- Travel history
At Jeffrey Y. Bennett Law, we can provide legal assistance to immigrants to the United States by carefully reviewing your immigration timeline and identifying options to protect your future. Whether you are seeking a green card, applying for a waiver, or concerned about potential reentry bars, understanding your unlawful presence is a critical first step.
