What is “unlawful presence”?
The Immigration and Nationality Act (INA) states: that someone is subject to unlawful presence when he/she is present in the U.S. after the expiration period of stay authorized by the Attorney General (authority responsible for allowing who is admitted to the U.S.) or is present in the U.S. without being admitted or paroled.
UNLAWFUL PRESENCE EXAMPLE UNVEILED HEREUNDER:
John Fanta flew into the U.S. from Nigeria on a B1 visa. The Immigration officer at the arrival airport stamped a 6-month’s authorized stay on his passport.
Question: If john overstays by 180 days beyond the six (6) months duration stamped on his passport, has he accrued unlawful presence?
Answer: Yes. John will be subject to the three-year bar.
Question: If John overstays by one year beyond the authorized Six (6) months period granted to him, has he accrued unlawful presence?
Answer: Yes. John will be subject to the 10-year bar.
Question: If John overstays by 179 days beyond the duration granted by U.S. immigration and travels back to his country, then comes back the next year and overstays by 179 days beyond the period granted to him, has he accrued any unlawful presence?
Answer: No. Unlawful presence is calculated for any unauthorized time during a single stay in the United States.
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