Accruing Unlawful Presence in the U.S. Can Result in Three- and Ten-Year Bars
The three- and ten-year time bars apply when a person has been unlawfully present in the United States for a specific amount of time, departs the United States, and then are barred from seeking readmission to the United States. (I.N.A. Section 212(a)(9)(B))
If a person has been unlawfully present in the United States for more than 180 consecutive days but less than 1 year (365 days) then the three-year bar will be triggered. The person would not be able to seek readmission into the United States for 3 years starting from the time he departs or is removed from the United States. If a person has been issued a Notice to Appear (NTA) and removal proceedings have begun but he has been granted Voluntary Departure, then the three year bar would not apply.
If a person has been unlawfully present in the United States consecutively for 1 year (365 days) or more then the ten year bar will be triggered. As with the three year bar the ten year time bar would start from the time the person departs or is removed from the United States. It is also important to keep in mind that if removal proceedings have begun and the person has been granted Voluntary Departure, the ten-year bar could still apply if a person has been unlawfully present in the United States for a year or more. This is an important distinction between the three-year bar.
The accrual of the unlawful presence must be for a consecutive period. For example, if a person has been unlawfully present in the United States for 178 days, departs the country on the 179th day, then re-enters the United States 2 days later, then this will break the chain of consecutive days of unlawful presence and the three-year bar would not be triggered.
Since both the three-year and ten-year bar depends on the amount of accrued unlawful presence it important to understand when unlawful presence will start to accrue. Unlawful presence occurs when a person is present in the United States “after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” (I.N.A. Section 212(a)(9)( B)(ii).)
For non-immigrants, this is usually means that unlawful presence will start to accrue the day after the expiration of the I-94. Unlawful presence is tolled if prior to the expiration of the I-94 a non-frivolous Change of Status (C/S) or Extension of Status (E/S) petition has been filed. Thus, if a timely C/S or E/S petition is pending beyond the expiration of a person’s I-94 he will be considered to be in a Period of Authorized Stay and will not accrue unlawful presence. For example, if a person is on an H-1B visa and his current I-94 expires on October 31, 2018, if no extension or change of status is filed and the person remains in the United States then unlawful presence will start to accrue on November 1, 2018. If he stays in the United States and then departs on May 1, 2019, then he will have accrued over 180 days of continuous unlawful presence, and the 3 year bar would be triggered once he departs and trys to re-enter the United States. Please see our previous article for a comparison between Lawful Status / Period of Authorized Stay / Unlawful Presence.
However, if the person had filed an H-1B extension petition with USCIS on September 30, 2018 and the extension petition is still pending, then on November 1, 2018 the person will enter into a period of authorized stay. If the petition is approved on May 1, 2019, then no unlawful presence would have accrued. If the extension petition is instead denied, then unlawful presence would start to accrue from the date of the denial, not the date the I-94 expired.
For non-immigrants who are admitted to the United States for Duration of Status (D/S) rather than a specific time period, unlawful presence starts to accrue the day after there has been a determination that the person has failed to maintain status. However, on August 9th 2018, USCIS issued a new policy memorandum that changed how unlawful presence was calculated for certain duration of status visas, specifically F, J and M visas. Under the new memo, there still must be a determination that the person has not maintained his status while on an F, J, or M visa, but under the new memo unlawful presence can be calculated retroactively, to the time the status violation occurred. If it is determined that the status violation occurred prior to August 9, 2018, then unlawful presence will start to accrue from August 9th. If a status violation occurs after August 9, 2018, then unlawful presence will start to accrue from the date of the status violation.
For example, if a person on an F-1 visa filed a Change of Status petition to H-1B in the April Quota and there was a determination on October 1, 2018 that the F-1 student had engaged in unauthorized activity while on F-1 prior to August 9, 2018, then the student would be found to have been accruing unlawful presence from August 9, 2018, rather than from October 2, 2018 as under the old policy. Thus, if the student stays in the United States past February 5, 2019, he will accrue over 180 days of unlawful presence and be subject to the 3 year bar.
Similarly, if the F-1 student had first engaged in unauthorized activity on September 1, 2018 and there was a determination on his Change of Status petition on October 1, 2018 that he violated his status then the student would be found to have started to accrue unlawful presence from September 1, 2018, as the activity occurred after August 9, 2018. Because of the change of how unlawful presence can be calculated for those on F, J, and M visas, a person in such a status can unknowingly accrue unlawful presence and thus be subject to either the 3 or 10 year bar from the United States.
By Rahul Reddy
Rahul is the founding partner of Reddy & Neumann P.C. His practice covers employment-based immigration, in which he represents corporate clients in far-ranging industries.