Understanding when unlawful presence begins is one of the most important aspects of U.S. immigration law. Accruing unlawful presence can lead to serious consequences, including bars to reentry that may prevent someone from returning to the United States for years. For immigrants and their families, knowing how unlawful presence is calculated can make a critical difference in protecting future immigration options.

At Gurian Group, P.A., we provide legal assistance to immigrants throughout the United States who need guidance on maintaining lawful status and avoiding immigration penalties.

What Is Unlawful Presence?

Unlawful presence refers to time spent in the United States after a person’s authorized stay has expired or when they are present without being admitted or paroled. It is not the same as simply being “out of status,” although the two concepts are often related.

Unlawful presence generally applies to individuals who entered the U.S. legally but overstayed their visa, or those who entered without inspection. However, determining exactly when unlawful presence begins is not always straightforward.

When Does Unlawful Presence Start?

The start date depends on the individual’s specific immigration situation.

After a Visa Overstay

If a person is admitted to the United States until a specific date (for example, noted on their I-94), unlawful presence typically begins the day after that authorized stay expires.

Individuals Admitted for “Duration of Status” (D/S)

Some nonimmigrants, such as F-1 students, are admitted for “Duration of Status.” In these cases, unlawful presence may not begin automatically when a status violation occurs. Instead, it may begin when:

• USCIS denies a benefit request and finds a status violation, or
• An immigration judge orders removal.

Entry Without Inspection

For individuals who entered without inspection, unlawful presence generally begins on the date of entry.

Minors and Certain Exceptions

Children under 18 do not accrue unlawful presence. Additionally, certain protected categories, including asylum applicants (under

specific conditions) and victims of trafficking or domestic violence, may qualify for exceptions.

Because the rules are complex and fact-specific, legal guidance is often essential to determine whether unlawful presence has accrued.

Why Does Unlawful Presence Matter?

Unlawful presence can trigger severe immigration penalties known as the three-year and ten-year bars.

• Three-year bar: Triggered after more than 180 days but less than one year of unlawful presence, followed by departure from the U.S.
• Ten-year bar: Triggered after one year or more of unlawful presence, followed by departure.

These bars can prevent someone from reentering the United States, even if they later become eligible for a visa or green card. In some cases, waivers may be available, but they require strong documentation and legal analysis.

Unlawful presence can also impact eligibility for adjustment of status, future visa applications, and other immigration benefits.

How to Protect Your Immigration Status

Many individuals unknowingly accrue unlawful presence due to misunderstandings about visa expiration dates, status violations, or pending applications. Taking proactive steps—such as filing extensions on time, maintaining proper documentation, and seeking legal advice before leaving the U.S.—can help prevent serious consequences.

If you believe you may have accrued unlawful presence, or if you are unsure about your current status, it is important to review your case carefully before making any travel or immigration decisions.

At Gurian Group, P.A., we work with immigrants across the United States to evaluate their immigration history, determine whether unlawful presence applies, and develop strategies to protect their ability to remain in or return to the country.