Unlawful Presence in the United States: What It Is, When It Starts, and What It Costs You

Updated November 2, 2026. We have rewritten this page because the earlier version got several things wrong, and we would rather say so plainly. It opened with the example of an extension filed late and then approved, and said the weeks between the I-94 date and the filing still counted as unlawful presence. Under USCIS’s own guidance, an approved extension restores the stay back to the date the old one ran out. It told Canadian visitors to rebuild their entry dates to count toward the three- and ten-year bars, when visitors admitted without an I-94 generally do not accrue unlawful presence at all until an agency or a judge finds a violation. It said a pending immigration court case protects you; the court case itself does not. And it described student and exchange-visitor status as if nothing had changed in 2026. This version corrects all four and adds what we see in practice.

If you are reading this, you probably have one question: have I been in the United States unlawfully, and will it keep me out if I leave? The answer depends less on how long you have been here than on which of five “clocks” applies to you, and on whether you leave.

The short answer. Unlawful presence is time spent in the United States after your authorized stay ends, or after entering without being admitted or paroled. Staying past your authorized stay cancels your visa, but the bars themselves only matter when you leave: more than 180 days (and less than a year), followed by a departure before immigration court proceedings begin, bars you from returning for three years; a year or more, followed by any departure, bars you for ten. Many common situations stop the clock or never start it: a timely filed extension, a pending green card or asylum application, parole, and, for most Canadian visitors, simply entering without an I-94.

What is unlawful presence?

Unlawful presence is a defined term in the immigration statute. Under INA § 212(a)(9)(B)(ii), a person is unlawfully present if they are in the United States after the period of stay the government authorized has ended, or if they are here without having been admitted or paroled. It is not a crime, and it is not a finding that anyone did something wrong. It is a count of days, and the count only has consequences when the person leaves and later asks to come back.

Unlawful presence is not the same thing as being “out of status.” Being out of status means breaking a condition of your visa: a student who drops below a full course load, a worker who changes jobs without a new petition. A person can be out of status for months without accruing a single day of unlawful presence, and a person can accrue unlawful presence while holding a visa stamp whose printed expiration date has not passed. In fact, staying past your authorized stay automatically cancels that visa, and you will generally need a new one from a U.S. consulate in your home country (INA § 222(g)). The two concepts overlap, but the bars to returning turn on unlawful presence. (Being out of status has its own consequences, especially for adjustment of status through an employer, which we come to below.)

Time before your 18th birthday never counts toward the three- or ten-year bars. Some former J-1 visitors face a separate obstacle, the two-year home-residency requirement, which has nothing to do with unlawful presence; participants in the J-1 Summer Work Travel program have their own rules as well.

When do the three-year and ten-year bars apply?

Both bars are triggered by leaving the United States, never by staying. The statute sets them out in INA § 212(a)(9)(B)(i):

• The three-year bar applies to a person who accrued more than 180 days but less than one year of unlawful presence and then left voluntarily before removal proceedings began. They cannot be admitted again for three years from the departure.
• The ten-year bar applies to a person who accrued one year or more of unlawful presence and then left or was removed, at any time. They cannot be admitted again for ten years from the departure or removal.

The difference in wording matters. Once the government has started removal proceedings, a person with between 181 and 364 days of unlawful presence who then leaves does not trigger the three-year bar, because that bar only reaches departures before proceedings start. The ten-year bar has no such limit: it applies whether the person left before, during or after a court case, and whether they left on their own or under an order. The State Department’s manual for consular officers says the same (9 FAM 302.11).

There is also a permanent bar under INA § 212(a)(9)(C) for a person who accrued more than one year of unlawful presence in total, left, and then came back or tried to come back without being admitted, and for a person who was ordered removed and came back the same way. Unlike the three- and ten-year bars, this count includes time before your 18th birthday and time while an asylum application was pending. No hardship waiver reaches it; the person generally has to remain outside the United States for ten years before asking permission to return. If that might describe anyone in your family, read our guide to returning after a deportation before you file anything.

When does the unlawful presence clock start?

It depends on how you came in. There are five common situations, and they work very differently.

Admitted until a date on your I-94

Most visitors and temporary workers (B-2 tourists, H-1B and H-2A workers, TN professionals, L-1 transferees, E-2 investors and their families) are admitted until a specific date. That date is on the electronic I-94 at CBP’s I-94 website, not on the visa in your passport; our guide to what your I-94 controls explains the difference. If you stay past that date with nothing on file, unlawful presence starts the next day and runs every day, weekends included, until you leave or something on file stops it.

Students and exchange visitors admitted for “duration of status”

F-1 students, J-1 exchange visitors, I media representatives and their families are admitted for “duration of status,” written D/S on the I-94, which has no end date. Under USCIS’s long-standing guidance, a person admitted for D/S does not accrue unlawful presence when they break the rules of their status. The clock starts only the day after USCIS denies an application and finds a status violation in that decision, or the day after an immigration judge finds one. In 2020 a federal court set aside a 2018 USCIS attempt to change that rule (see USCIS’s unlawful presence page).

This is changing, and the date matters. DHS published a final rule on July 17, 2026 that replaces D/S with a fixed admission date plus an extension process (91 Fed. Reg. 44976). Under that rule, a student who stayed past the fixed date would start accruing unlawful presence the next day, like any other visitor. The rule was to take effect September 15, 2026, but on September 14, 2026 a federal court in Massachusetts postponed it “pending final resolution of this matter on the merits” (Presidents’ Alliance on Higher Education and Immigration v. DHS, D. Mass.). As of November 2026, D/S and the formal-finding rule remain in place. Our article on the end of duration of status tracks the rule and what students should do to be ready for it.

Canadian visitors admitted without an I-94

Most Canadian citizens who come to visit are not issued an I-94 at all; CBP’s own I-94 help page lists “most Canadian citizens visiting or in transit” among the travelers who do not need one, and the regulation says the same (8 CFR § 235.1(h)(1)(i)). USCIS’s guidance treats a visitor admitted without an I-94 like a student admitted for D/S, so the clock starts only after a formal finding. The next section explains what that means in practice, and what it does not.

Parolees

A person paroled into the United States under INA § 212(d)(5) does not accrue unlawful presence while the parole lasts. The clock starts the day after the parole expires, or the day after it is revoked or terminated. If your parole ended early, our page on options for former parolees walks through what is left. Being released from Border Patrol custody with a Notice to Appear is not always parole; we explain the difference in the section on 2023 and 2024 arrivals below.

Entered without inspection

A person who crossed the border without going through a port of entry has been accruing unlawful presence since the day they entered (for the three- and ten-year bars, counted from their 18th birthday if they came as a child). Nothing about the passage of time changes that. What can stop the clock is a filing, which we come to below.

Are Canadian visitors different?

Yes, and in a way that helps most Canadian visitors more than they realize. It is also the part of this page where the earlier version was most wrong.

The rule. USCIS’s 2009 consolidated unlawful presence guidance, which USCIS says it continues to apply, puts it in one sentence: “Nonimmigrants, who are not issued a Form I-94, Arrival/Departure Record, are treated as nonimmigrants admitted for D/S for purposes of determining unlawful presence” (USCIS memo of May 6, 2009, which gives “Canadian B-1/B-2” as its example). USCIS’s Administrative Appeals Office has applied that rule to Canadian visitors in decisions that are not precedents but show how the agency reads it: in one, it found that a Canadian visitor with no I-94 and no status-violation finding was not barred, even though the local USCIS office had counted more than a year of unlawful presence (AAO, April 13, 2010, non-precedent).

Is it still true now that the border runs on passport scans? That was the first thing we checked, because the border has changed a great deal. The answer as of November 2026 is yes. Scanning your passport at the booth creates an entry in your CBP travel history; it does not create an I-94. CBP’s I-94 help page, read on November 2, 2026, still lists most Canadian visitors among the travelers who are not issued one, and DHS said the same in a June 2026 rule, adding that Canadians “may choose to request a Form I-94” online (91 Fed. Reg. 39248). Canadians entering to work are different: a TN, H-1B, L-1, H-2A or E-2 admission comes with an I-94 and an “admit until” date, and the ordinary date-certain rules apply.

Because border practice keeps moving, the safest habit does not depend on who is right about the rule. After every entry, look yourself up on CBP’s I-94 website. If a record with an admit-until date appears, treat that date as your deadline. If no I-94 appears, save a copy of your travel history, which is the proof of your entries; our article on proving an admission without a passport stamp explains how, and our page on errors in your CBP travel history explains what to do when the record is wrong.

The rule only helps if you can prove you were admitted. In another non-precedent decision, a Canadian argued exactly this rule and lost, because she could not show that her claimed entries as a visitor had actually happened (AAO, February 9, 2021, non-precedent). Your travel history is that proof. Keep it.

It is not a license to stay. A Canadian visitor who stays far longer than a visit is still out of status even without accruing unlawful presence, and that matters the next time they reach the border. An officer who concludes you are really living in the United States can refuse admission, and some refusals carry their own bars; our page on being refused re-entry after a trip to Canada explains how that goes. And if USCIS ever denies an application and finds that you violated your status, the unlawful presence clock starts the day after that decision.

Staying 30 days or more now means registering. The immigration statute has long required every non-citizen who stays in the United States for 30 days or more to be registered (parents register children under 14), and since April 11, 2025 DHS has enforced that requirement with a registration form (INA § 262). A Canadian visitor admitted without an I-94 is not registered by the admission itself. DHS’s June 2026 rule describes two ways to comply: file Form G-325R with USCIS, or request an I-94 from CBP before traveling. In our view the choice is not neutral. A G-325R registers you without giving you an end date. A requested I-94 registers you too, but it carries an admit-until date, and once you have one, the ordinary date-certain clock applies to you like any other visitor. That is our reading, not a rule anyone has written down, and it is worth thinking through before a long stay.

Does a quick trip to Canada or Mexico give me a new I-94?

Usually not. This is one of the most common ways people overstay without meaning to. CBP’s I-94 help page, as read on November 2, 2026, says that short trips of less than 30 days by land or ferry to Canada, Mexico or the adjacent islands “will not result in a new Form I-94 or extend your current ‘Admit Until Date.'” You come back on the I-94 you already had, with the date you already had.

Visa Waiver Program travelers are caught by the same rule in the regulation itself: after a trip to Canada or Mexico they are readmitted only “for the balance of” their original 90-day admission (8 CFR § 217.3(b)). We regularly see visitors from Mexico and Europe who drive to Canada or Mexico for a few days, come back, and assume a new period started. Nobody at the land border tells them otherwise, and the old date keeps running. Check the I-94 website after you return, every time.

What stops the clock, and what does not?

Several filings put a person in a “period of stay authorized” while they are pending, so no unlawful presence accrues during that time. The ones readers ask about most:

• A timely, non-frivolous extension or change of status (Form I-539, or an I-129 petition that asks for an extension), received no later than the I-94 date. The statute itself protects up to 120 days, and only for the three-year bar (INA § 212(a)(9)(B)(iv)). USCIS policy extends the protection to all the bars for the whole time the application is pending, if the person was in status when it was filed and has not worked without authorization before or during it.
• A properly filed green card application (Form I-485) with USCIS, for the whole time it is pending, even if it is later denied.
• A bona fide asylum application, filed with USCIS or in immigration court, for the three- and ten-year bars, unless the applicant works without authorization while it is pending (INA § 212(a)(9)(B)(iii)(II)).
• Temporary Protected Status, deferred action and parole, while each lasts.

Two points are easy to miss. First, apart from an approved extension or change of status, which reaches back to the old date (next section), none of these erases unlawful presence that accrued before the filing; they stop the clock, they do not rewind it. Second, several things that feel protective do not stop the clock at all: being placed in removal proceedings, filing a motion to reopen, and filing a green card application for the first time with an immigration judge rather than with USCIS (an application USCIS denied and that is renewed in court is different). The State Department lists the protected periods for consular officers in 9 FAM 302.11.

I filed my extension late. Do I have unlawful presence?

Not if USCIS approves it. Under USCIS’s 2009 guidance, when an extension or change of status is approved, the person receives a new period of authorized stay “retroactive to the date the previous period of authorized stay expired.” USCIS can excuse a late filing in its discretion when the delay came from extraordinary circumstances beyond the person’s control, the person has not otherwise violated their status, and they are not in removal proceedings (8 CFR § 214.1(c)(4)). Our page on untimely extensions and changes of status covers what that showing takes.

The danger is a denial. If USCIS denies an extension because it was filed late, unlawful presence is counted from the day after the old I-94 date, not from the denial. That is why a late filing is a gamble: approval cures the gap, and denial confirms every day of it. “Timely” means received by USCIS no later than the I-94 date, not merely mailed by then.

My approval notice shows a gap in my status. Is that unlawful presence?

Usually not, and this is where paper and reality part ways. In our experience, when USCIS approves a timely extension after the requested start date has passed, the new I-94 printed on the approval notice often starts on the approval date. We saw this recently on an H-1B extension that was filed on time and with premium processing: a difficult request for evidence took the employer most of the response period to answer, and the approval came well after the start date we had asked for. On paper there is a gap between the old I-94 and the new one.

The law fills that gap. While a timely, non-frivolous extension was pending, the worker was in a period of authorized stay and accrued no unlawful presence, and an H-1B worker in that position may keep working for the same employer for up to 240 days after the old date while the extension is pending (8 CFR § 274a.12(b)(20)). But nobody looking at the two I-94s side by side will see that unless you show them. Keep the receipt notice, the proof of delivery and the approval notice together for every filing, for as long as you might apply for a green card.

That matters most for employment-based green cards. A worker adjusting status through an employer must account for their time in the United States, because the employment-based exception in INA § 245(k) forgives no more than 180 days in total of being out of status, working without authorization or other violations since the last lawful admission. Under the adjustment regulation, status extended under the nonimmigrant rules counts as lawful status (8 CFR § 245.1(d)(1)(ii)), so a paper gap of this kind should not count toward that total, but the applicant has to prove it with the filings themselves. Family-based applicants who are immediate relatives of U.S. citizens do not face that accounting. Our adjustment of status guide explains the § 245(c) bars and the § 245(k) exception.

Does being in immigration court protect me from unlawful presence?

No. The court case itself stops nothing. USCIS’s guidance says it directly: “filing the NTA does not stop the accrual of unlawful presence.” A person whose I-94 expires while their case is pending starts accruing unlawful presence the next day, whatever the case is about.

What being in court does change is which bar can apply if you leave. Because the three-year bar only reaches departures before proceedings begin, it drops away once a Notice to Appear has been filed with the court. The ten-year bar does not: a person with a year or more of unlawful presence triggers it by leaving at any point, including under voluntary departure. If you are thinking about leaving during a court case, read our page on leaving on your own terms first.

What does protect a person in court is a pending application of the right kind, most often an asylum application, covered next.

How does an asylum application affect unlawful presence?

From the day a bona fide asylum application is filed, the applicant stops accruing unlawful presence for the three- and ten-year bars for as long as it is pending, including any appeal. (That time still counts toward the permanent bar described above.) It does not matter whether it was filed with USCIS or with an immigration judge. “Bona fide” means a properly filed application with a reasonably arguable basis that is not frivolous; a denial, or even abandoning the application later, does not by itself make it not bona fide. The protection is lost for anyone who works without authorization while it is pending. For an H-2A worker waiting on an asylum work permit, that condition decides almost everything; our page on the gap between H-2A and the asylum work permit works through it.

Unlawful presence that accrued before the filing still counts. For a person who entered without inspection, that is where the one-year asylum deadline and the bars line up, even though the law does not connect them: someone who files within a year of entering has less than a year of unlawful presence at filing, which keeps them below the ten-year line (though not necessarily the three-year line, if they left before any court case began). Someone who files late has usually crossed it already. The deadline itself, and its exceptions, are in our asylum application guide; leaving while a case is pending is covered in our departure guide.

I was released at the border in 2023 or 2024 with a Notice to Appear. I want to marry a U.S. citizen. Where do I stand?

We are seeing many people in this situation now: released with a Notice to Appear in 2023 or 2024, never filed for asylum, and now engaged or married to a U.S. citizen. The answer turns on a document most of them have never looked at closely, the one that shows how they were released.

• Paroled at a port of entry (for example, after a CBP One appointment) under INA § 212(d)(5). A parolee accrued no unlawful presence while the parole lasted, and a person who was paroled can generally apply for a green card inside the United States as the spouse of a U.S. citizen. If they never leave before the green card is approved, the three- and ten-year bars never come into play. Eligibility is not approval, though: since May 2026 USCIS has told its officers to weigh an expired parole, and the choice to adjust here rather than apply abroad, against the applicant, so the file needs strong positive factors.
• Released on their own recognizance or on “conditional parole” after being caught crossing. That is not parole for green card purposes (Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010)), and the person has been accruing unlawful presence since the day they entered. They generally cannot get a green card inside the United States through marriage; the path is an immigrant visa abroad, usually with an I-601A waiver approved first, because by now most of them have more than a year of unlawful presence and leaving will trigger the ten-year bar.

Either way, the Notice to Appear did not stop the clock, and the court case has to be dealt with as well as the marriage petition. An I-601A cannot be filed while the court case is active unless it has been administratively closed, and anyone with a removal order, including one issued for missing a hearing, first needs permission to reapply on Form I-212 (8 CFR § 212.7(e)(4)). Our page on marrying during removal proceedings explains the extra proof the law demands of those marriages, and our page on adjustment of status in immigration court explains how a green card case runs inside a court case.

Can the three-year and ten-year bars be waived?

Yes, for many people, and often before they leave. The I-601A provisional waiver lets the spouse, son or daughter of a U.S. citizen or permanent resident, among others, ask USCIS to forgive the unlawful presence bars before going abroad for the immigrant visa interview, by showing extreme hardship to a U.S. citizen or permanent resident spouse or parent. We have prepared I-601A waivers since the program opened in March 2013, and they are among the cases we know best. Our I-601A eligibility and hardship guide explains who qualifies and what extreme hardship means, and our page on what an approved I-601A does not cover is required reading before the trip. For a U.S. citizen married to someone who entered without inspection, our guide to marrying an illegal immigrant lays out the three steps and the permanent bars that stop them.

The I-601A forgives unlawful presence and nothing else. A prior removal, a quick return after one, a misrepresentation or a criminal record each needs its own answer, and a hidden one can sink an approved waiver at the consulate. That is why we pull a client’s government records before starting this process; the I-601A guide explains why. If unlawful presence is not the only problem on your record, our waiver router shows which waiver each ground needs and who has to be the qualifying relative.

Does travel on advance parole still protect me?

Not since August 13, 2026. For fourteen years, under Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), a trip abroad on advance parole was not a “departure” that triggered the bars. In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), decided August 13, 2026, the Board overruled Arrabally: a departure on advance parole is now a departure, so a person with more than 180 days of unlawful presence who travels on advance parole can trigger the three- or ten-year bar. USCIS has posted an alert in its Policy Manual applying the decision. The change hits DACA recipients and green card applicants hardest. Our article on advance parole after Delcarmen-Lara covers which trips the new rule reaches and whether filing for advance parole still makes sense.

What does unlawful presence mean if I am never planning to leave?

The bars themselves only bite on departure, but unlawful presence still shapes other things. Whether a person present without admission who is arrested in the interior can get a bond hearing depends on the circuit: the Board of Immigration Appeals says no (Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025)), but the Ninth Circuit, which covers Montana, rejected that rule on July 30, 2026 (Rodriguez Vazquez v. Bostock), and the Supreme Court agreed on October 1, 2026 to decide the question. Our detention and bond guide tracks where that stands. Long presence can also matter in a defense: cancellation of removal for non-permanent residents requires ten years of continuous physical presence, among other things. And at a consular interview the officer will ask about past unlawful presence. Answer truthfully: the officer can see CBP’s arrival and departure data, and a false answer adds a misrepresentation ground that is far harder to fix than the unlawful presence was.

What mistakes do we see most often?

• Filing an extension late and traveling before the decision. Leaving while a late-filed extension is pending throws away the chance of an approval that would have cured the gap.
• Trusting the visa stamp instead of the I-94. The visa is permission to ask to enter. The I-94 date is how long you may stay.
• Assuming a trip across the land border reset the clock. Under 30 days it did not, and for Visa Waiver travelers no trip to Canada or Mexico restarts the 90 days.
• Assuming a court case protects you. Only the right pending application does.
• Working while an asylum application is pending without a work permit. That alone can turn the whole pending period into unlawful presence.
• Not keeping the paperwork. Receipt notices, proof of delivery, approval notices and your CBP travel history are what prove the clock was stopped. Save them.

Before you book a flight

Most unlawful presence problems are discovered at a consulate or a border after the departure has already happened, when nothing can be undone. The time to count is before you leave. Pull your I-94 and travel history, gather every receipt and approval notice, and work out which of the five clocks applied to you at each point. I have practiced immigration law since 1996 and founded the firm in 2001, and the most expensive cases we see are the ones where someone travelled first and asked afterwards.

If you are unsure how your own dates work, or you want a plan for staying out of trouble before a long visit or a trip home, a paid consultation is where we can go through your records with you. Immigration Law of Montana, P.C., Shepherd, Montana, serves the Rocky Mountain West and Western Canada.