Unlawful Presence and Bars to Admission

You are in lawful status if:

• You have a valid, unexpired I-94, Arrival/Departure Record, and comply with all conditions of your visa classification.

You are in a period of authorized stay if:

• Your original I-94 is no longer valid, but before it expired, you filed a request for extension or change of your nonimmigrant status which is still pending; or
• You applied for adjustment of status (the Green Card), and that application is currently pending.

You are unlawfully present in the United States if:

• You entered the country illegally, i.e., without having been admitted or paroled; or
• Your I-94 has expired, and you did not file a timely application for adjustment, change, or extension of status, or you filed a timely application that was subsequently denied.

Both the three-year and ten-year inadmissibility periods start on the date you leave the U.S. and are triggered when you apply for a visa or seek readmission during the next three (or ten) years.

Three-Year Bar

Ten-Year Bar

Shorter Periods of Unlawful Presence

For purposes of the three- or ten-year bars, periods of unlawful presence are not counted in the aggregate; they must be continuous. However, while two or three separate weeklong overstays during different visits to the U.S. would not trigger either of these bars to admissibility, they would still constitute violations of your status, and a consular officer or border patrol agent could use their discretion to deny your visa or application for entry based on these past violations.

Form I-512, Advance Parole, is a travel authorization document that is available to certain noncitizens in the U.S., such as:

• Adjustment (Green Card) applicants
• DACA recipients
• Individuals with pending asylum applications
• Individuals who were granted T or U status for victims of human trafficking or certain crimes

Advance parole allows these noncitizens to leave and reenter the U.S. without abandoning their status or pending application.

For more than a decade, travel outside the U.S. under advance parole was not treated as a regular departure. As a result, it did not trigger the three- or ten-year bars to inadmissibility for those with over 180 continuous days of unlawful presence.

However, on August 13, 2026, the Board of Immigration Appeals (BIA) overruled this policy, holding that travel on an advance parole travel document will now be considered a “departure” and could therefore trigger the three- or ten-year unlawful presence bar.

The law exempts certain groups from accruing unlawful presence for purposes of the three- and ten-year bars. These include:

• Children under the age of 18
• Asylum applicants with a pending bona fide application (unless they engage in unauthorized employment)
• Beneficiaries under the Family Unity program
• Battered spouses and children self-petitioning under the Violence Against Women Act (VAWA) who can establish a link between their unlawful presence and the abuse
• Trafficking victims, if the trafficking was a central reason for their unlawful presence.

If you are subject to a three- or ten-year bar, you can apply for a waiver by submitting Form I-601, Application for Waiver of Grounds of Inadmissibility, either from within or outside the U.S. This route is available to you if you are the spouse or child of a U.S. citizen or lawful permanent resident and you otherwise qualify to apply for a Green Card—but only if you can prove that enforcing the bar would result in “extreme hardship” to your citizen or permanent resident spouse or parent. You must also warrant a “favorable exercise of discretion", meaning you must show why you “deserve” a waiver.

However, if you entered the U.S. lawfully, never left the U.S. after accruing unlawful presence, and are the immediate relative of a U.S. citizen, you may be able to adjust your status (i.e., apply for a Green Card from within the U.S.) without needing a waiver. Because you did not leave the U.S., you did not trigger either the three-year or ten-year bar