What is unlawful presence, and how do the 3-year and 10-year bars work?

Details / How it works

Unlawful presence is defined by INA 212(a)(9)(B)(ii) as time spent in the United States without being admitted or paroled, or after the period of stay authorized by the Secretary of Homeland Security expires (typically shown on Form I-94). Accrual begins upon entry without admission/parole, or the day after authorized stay ends (including after D/S expiration).

The 3-year bar (INA 212(a)(9)(B)(i)(I)) triggers inadmissibility if an alien accrues more than 180 days but less than 1 year of unlawful presence during a single stay, voluntarily departs before removal proceedings begin, and seeks admission within 3 years of departure.

The 10-year bar (INA 212(a)(9)(B)(i)(II)) triggers inadmissibility if the alien accrues 1 year or more of unlawful presence during a single stay, leaves or is removed, and seeks admission within 10 years.

Both bars run from the date of departure or removal. A permanent bar (INA 212(a)(9)(C)(i)(I)) exists for reentering without admission after an aggregate of more than 1 year of unlawful presence.

As of Aug. 13, 2026, the BIA precedent in Matter of Delcarmen-Lara overruled Matter of Arrabally and Yerrabelly, holding that departure with an Advance Parole Document (Form I-512L) now counts as a departure for the 3- and 10-year bars. This means aliens with over 180 days of unlawful presence who travel on advance parole risk inadmissibility upon return.

Numbers & thresholds

Exceptions & edge cases

The statute provides exceptions to accrual of unlawful presence for the 3- and 10-year bars (but not for the permanent bar under INA 212(a)(9)(C)(i)(I)):

• Minors: Aliens under age 18 do not accrue unlawful presence.
• Asylees and asylum applicants: Generally, time with a bona fide asylum application pending is excluded.
• Family Unity beneficiaries: Individuals protected under section 301 of the Immigration Act of 1990.
• VAWA self-petitioners: Battered spouses/children who show a substantial connection between abuse and the status violation.
• Trafficking victims: Victims who demonstrate the trafficking was at least one central reason for the unlawful presence.

Additionally, certain periods are considered authorized for unlawful-presence counting even if technically out of status (see AFM Chapter 40.9.2).

Key edge case – Advance Parole: Prior to Aug. 13, 2026, Matter of Arrabally and Yerrabelly protected departures on advance parole from triggering the bars. The Matter of Delcarmen-Lara decision reversed this, so now any departure with an Advance Parole Document (Form I-512L) by an alien with over 180 days of unlawful presence counts as a departure for the 3- and 10-year bars. Aliens in this situation should consult an attorney before traveling.

Waivers may be available for some inadmissible individuals (e.g., Form I-601, I-601A, I-212, I-192) depending on the benefit sought.