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Unlawful Presence

Unlawful presence is time spent in the United States after your authorized stay expires, or after entering without being inspected and admitted. It matters because enough of it, followed by departure, bars you from returning.

Written by the NorthAmericans Editorial TeamLast verified: Expert review in progress
On this page
  1. How it is counted
  2. Frequently asked questions
  3. Official sources

How it is counted

Unlawful presence usually starts the day after the date on your I-94. For people admitted for "duration of status," such as students, it generally starts only after an official finding by USCIS or an immigration judge.

Some time does not count, including time under age 18, time with a pending bona fide asylum application, and certain periods with a timely filed extension or change of status.

Unlawful presence is different from being out of status. You can violate status without accruing unlawful presence. See 3- and 10-year bars and the I-601A waiver. If this affects you, talk to a licensed immigration lawyer before leaving the US.

Frequently asked questions

Do children accrue unlawful presence?

No. Time before age 18 does not count toward the 3- and 10-year bars.

Is overstaying the same as unlawful presence?

An overstay past the I-94 date usually starts unlawful presence, but some pending filings pause the count.

Can unlawful presence be forgiven?

Some people can get a waiver, usually by showing hardship to a US citizen or permanent resident spouse or parent.

Official sources

  1. USCIS: Form I-601Auscis.gov

General information, not legal advice. NorthAmericans.com is independent and not affiliated with any government.