When Does Unlawful Presence Start?

USCIS has released a Memorandum, dated May 6, 2009, from Donald Neufeld which Memorandum consolidates prior guidance concerning unlawful presence in the Unitd States.  The Memorandum provides some clear and useful guidance on when does the period of unlawful presence start and what are implications of accruing 180 or 365 days or unlawful presence.

What is the Importance of Unlawful Presence?

Secton 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (the “Act”) renders inadmissible aliens who were unlawfully present for more than 180 days but less than one (1) year, who voluntarily departed the U.S. prior to the initiation of removal proceedings and who seek admission within three (3) years of the date of such depature from the U.S.  Similarly, Section 212(a)(9)(B)(i)(II) of the Act renders inadmissible aliens who were unlawfully present for one (1) year or more and who seek admission within ten (10) years of the date of the alien’s departure or removal.

These are significant bars to entry to the U.S. and it is important to understand what is unlawful presence and the circumstances under which unlawful  presence starts to accrue.  Under the Act, unlawful presence can accrue during any period in which the alien is present in the United States without having been admitted, paroled or after the expiration of the period of stay authorized by the Secretary of Homeland Security.

Important Distinction between Unlawful Status and Unlawful Presence

It is important to draw one very important distinction which, unfortunately, creates confusion (and often, unnecessary worry) among foreign nationals.   Unlawful status and unlawful presence are related, yet separate concept (one must be in present in an unlawful status in order to accrue unlawful presence, but being in unlawful status alone does not necessarily mean that the 3/10 year bans are triggered).

Unlawful presence is defined in Section 212(a)(9)(B)(ii) of the Act to mean that an alien is deemed to be unlawfully present in the U.S. if the alien is (1) present after the expiration of the period of stay authorized by the Secretary of Homeland Security or (2) present without  being admitted or paroled.   On the other hand, unlawful status may mean a violation of a previously valid status.  For example, a F-1 student  who drops out of school is said to be in unlawful status.  However, the alien will not start accruing unlawful presence until immigration judge or USCIS makes a determination that the alien was out of status.

Specific Guidance on When Unlawful Presence Starts

The Memorandum describes some specific situations and provides some guidance on when exactly does the period of unlawful presence in the U.S. start.

For Nonimmigrants Admitted until a Specific Date.  Generally the unlawful presence starts on the day following the date the authorized period of admission expires, as noted on the Form I-94, Arrival/Departure Record.  If USCIS finds, during the adjudication of a request for some immigration benefit, that the alien has violated his or her nonimmigrant status, unlawful presence will begin to accrue either the day after Form I-94 expires or the day after USCIS denies the request, whichever comes first.  Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first.   Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated.

Nonimmigrants Admitted for Duration of Status (D/S).  If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied.   Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first.  Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated.

Conclusion

Hopefully the Memorandum and our short summary of a few important points would provide some clarity and understanding on the confusion unlawful status and unlawful presence concepts.  It is important to underscore again that falling into unlawful status (as a result of layoff or dropping out of school, for example) does not necessarily mean that the period of unlawful presence starts which (after 180 days) can subject the person to the 3-year ban.