What is Unlawful Presence and Bars to Admissibility?

Unlawful presence is the period of time when a foreign national is in the United States without being lawfully admitted or paroled or not in a period of stay authorized by the Secretary of Homeland Security.

With certain exceptions, a foreign national with unlawful presence may be barred from being legally admitted to the United States for:

• 3 years if the foreign national departed the U.S. after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay and before removal proceedings begin;

• 10 years if the foreign national departed the U.S> after having accrued 1 year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or

• Permanently, if the foreign national reentered or attempt to reenter the U.S. without being lawfully admitted or paroled after having accrued more than 1 year of unlawful presence in the aggregate during 1 or more stays in the U.S.

Exceptions for accrual of unlawful presence for the 3-year and 10-year bars exist to asylees, minors while under the age of 18, family unity beneficiaries, battered spouses and children under the Violence Against Women Act, victims of a severe form of trafficking.

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