Any discussion of unlawful presence should begin by differentiating unlawful presence from being out of status. Anyone who violates their nonimmigrant status is immediately out of status until they or the government acts to restore that status.

Any discussion of unlawful presence should begin by differentiating unlawful presence from being “out of status.” Anyone who violates their nonimmigrant status is immediately out of status until they or the government acts to restore that status. Some examples of activities that violate status include working for a company other than the one for which the person is authorized to work in an employment-based status; failing to work for the petitioner in an employment-based status; or working for the petitioner in a materially different job than the one described in the petition without first filing an amended petition with USCIS. Once a violation has occurred, the person will remain out of status until either a petition is approved to restore his status, or until he leaves the United States and reenters and thereafter abides by the terms of his status.

Being out of status and accruing unlawful presence are very different, however. Unlawful presence refers only to time accrued toward the 3 or 10 year bars, and there is a long history of guidance memoranda indicating that unlawful presence begins to accrue only upon a specific triggering event, which includes:

• Expiration of a date certain I-94
• A finding by USCIS or an Immigration Judge that the person is out of status

The three-year bar is found in INA § 212(a)(9)(B)(i)(I), which states:

In general.--Any alien (other than an alien lawfully admitted for permanent residence) who-- (I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal … is inadmissible.

The ten-year bar is found in INA § 212(a)(9)(B)(i)(II), which states:

In general.--Any alien (other than an alien lawfully admitted for permanent residence) who-- (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible.

The Act further defines the conditions giving rise to accrual of unlawful presence at § 212(a)(9)(B)(ii), stating:

For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled. (Emphasis added).

The statutory definition of “unlawful presence” indicates that it begins to accrue upon expiration of an alien's period of authorized stay. The reference to “expiration” of such a period implies that such a date is fixed and that the alien is on notice of the fixed date.

A finding of inadmissibility based on the three-year bar may be made by four different government agencies. USCIS may find an alien subject to the bar during the course of adjudicating an application for a benefit under the Act; the Department of State may find an alien subject to the bar during the course of a visa adjudication; CBP may find an alien subject to the bar during an application for admission; and EOIR may find an alien subject to the bar in the course of removal proceedings. USCIS, DOS and CBP have all issued guidance on what triggers accrual of unlawful presence. The guidance on this issue has evolved over the years and there are startling inconsistencies between the ways in which the various agencies responsible for enforcing the bar have interpreted its applicability. The current agency guidance on this topic, in summary, is as follows:

U.S. Citizenship & Immigration Services (USCIS)

USCIS has issued the most extensive guidance on accrual of unlawful presence of any government agency. The initial guidance was promulgated by the Immigration and Naturalization Service beginning in 1997, following enactment of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), which created INA § 212(a)(9)(B). When the majority of INS's functions were subsumed by USCIS following the creation of the Department of Homeland Security (“DHS”) in 2003, USCIS adopted legacy INS memoranda as its own.

INS initially issued guidance via a memorandum dated March 31, 1997, stating that, “The Service interprets time ‘unlawfully present' to include any time spent in the United States by aliens after they have violated the terms and conditions of any form of nonimmigrant status, because time spent in violation of status is not authorized.” And further, “Unlawful presence may be triggered either by overstaying the time authorized for by entering into an activity that violates the terms and conditions of status.” The Service quickly retracted its policy to consider an alien unlawfully present by virtue of a status violation, however, stating in a September 1997 memo that, “Under the modified interpretation, unlawful presence with respect to a nonimmigrant includes only periods of stay in the United States beyond the date noted on Form I-94, Arrival/ Departure Record. Unlawful presence does not begin to run from the date of a status violation….” The memo further clarifies that unlawful presence may begin to accrue prior to expiration of Form I-94 only in two circumstances:

1. when an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings, or
2. when the Service makes such a determination during the course of adjudicating a benefit application. In cases where the immigration judge finds there was a status violation, unlawful presence begins to accrue as of the date of the order of the immigration judge, whether or not the decision is appealed…. In the case of a Service determination of a nonimmigrant status violation, unlawful presence will begin as of the date of the decision denying the immigration benefit, whether or not appealed.

Id. While not explicitly stated in the memo, this policy hinges on notice to the alien. Aliens only begin to accrue unlawful presence after begin given specific notice that they are out of status, either by virtue of an expiring I-94, or a decision from an immigration judge or the Service. The fact that accrual of unlawful presence hinges on notice, per Service policy, is indicated by the fact that it accrues only after a judge's order or the date of a Service determination rather than upon the alien's violation giving rise to such notice.

In a subsequent memo dated January 15, 1999, by which the Service updated the Inspector's Field Manual (“IFM”) regarding unlawful presence and visa cancellations under INA § 222(g), the Service addressed F-1 and M-1 students, who are admitted for “duration of status” (“D/S”) rather than to a date certain. Such aliens, the memo states, only accrue unlawful presence “when there is a formal finding of a status violation by the Service or an immigration judge.”. Again, Service policy with regard to events triggering accrual of unlawful presence hinges on notice to the alien. Since aliens admitted D/S receive no formal notice of when their status expires, they can only accrue unlawful presence upon receipt of a formal finding by an immigration judge or the Service.

In 2009, USCIS issued a memo rescinding all prior memoranda on unlawful presence and consolidating Service policy, while also updating the Adjudicator's Field Manual. The memo retains the interpretation that aliens do not accrue unlawful presence until their I-94 expires or until a formal finding has been made by an IJ or the Service that the alien is out of status.. The 2009 memo also importantly updates the Adjudicator's Field Manual to state, “Non-controlled Nonimmigrants (e.g. Canadian B-1/8-2). Nonimmigrants, who are not issued a Form 1-94, Arrival/Departure Record, are treated as nonimmigrants admitted for D/S for purposes of determining unlawful presence.” While Canadians visitors who are admitted in B-2 status and not issued an I-94 Form are not actually admitted D/S, they are similar to D/S aliens in that they do not receive any formal notice of the date on which their status will expire. The Service policy to treat non-controlled Canadians in the same manner as D/S aliens, again, therefore, hinges on notice.

U.S. Department of State (DOS)

The Department of State's guidance on unlawful presence closely tracks that of legacy INS and reflects successful efforts at interagency policy coordination. In a December 23, 1997 memo, DOS stated that aliens begin to accrue unlawful presence upon expiration of Form I-94 or, in the case of aliens admitted for “duration of status,” upon a formal finding by an immigration judge or the Service that the alien is out of status. In addition, DOS clarified by memo in 1999 that “a Canadian, …, admitted following inspection, who has not been issued an I-94, should be treated in the same manner as a duration of status case, similar to an F or J. … The unlawful presence commences on the date when the immigration judge, or INS officer, makes the ruling, not the date the status violation began.” The Department of State's policy is therefore identical to that of USCIS, requiring that an alien receive formal notice that he is out of status, either through expiration of his admission document or through a finding by the Service or an immigration judge.

U.S. Customs & Border Protection (CBP)

CBP guidance on unlawful presence is sparse. Prior to creation of the Department of Homeland Security (“DHS”) in 2003, immigration functions at the border were carried out by the Immigration and Naturalization Service. Since the creation of DHS, all border activities including both Customs and Immigration are carried out by CBP. With limited exceptions, USCIS adjudicates applications for all other immigration benefits in the interior. While USCIS has adopted legacy INS memoranda as official agency policy, CBP has not.

CBP's Inspector's Field Manual (“IFM”)1 mentions unlawful presence in Chapter 15.15(e)(2)(B), stating that nonimmigrants admitted D/S are only subject to accrual of unlawful presence “where there is a formal finding of a status violation by the Service or by an immigration judge, resulting in the termination of the period of stay authorized by the Attorney General.”

On April 10, 2013, Carey T. Davis, Acting Executive Director, Admissibility and Passenger Programs, Office of Field Operations wrote a letter to the American Immigration Lawyers Association in response to an inquiry about whether non-controlled B-1/B-2 Canadians are considered to accrue unlawful presence if they remain in the U.S. for longer than a presumed six month admission period. The letter is the first piece of official CBP guidance on unlawful presence since the creation of the agency, and it does not articulate a clear policy, nor does it evince any knowledge of historic agency interpretation of the unlawful presence bars. The letter states, on the one hand, that CBP does not believe that INA § 212(a)(9)(B) or “the implementing regulations”2 “supports a determination that any individual who is admitted, but not provided an I-94, is admitted for an indefinite period of time.” On the other hand, the letter concludes with a statement that, “there may be other inadmissibility grounds that exist that CBP Officers may consider when charging a non-controlled nonimmigrant.” These statements are somewhat inconsistent with each other, indicating that non-controlled B-2 Canadians do accrue unlawful presence if they remain in the U.S. in B-2 status for more than six months, but that such aliens may be denied admission based on alternative grounds, such as, perhaps, INA § 212(a)(7), for lacking proper admission documents. It does not any make sense that someone who is inadmissible under § 212(a)(9)(B) should be denied admission under any other ground, and demonstrates agency misgivings about applying the three and ten year bars in this manner.

In addition to being internally inconsistent, the statement that a B-2 Canadian admitted without an I-94 accrues unlawful presence after six months because such an individual is not “admitted for an indefinite period of time” indicates lack of understanding that there is a difference between unlawful presence and being out of status.3 A non-controlled Canadian may exceed his or her period of admission and be out of status and deportable, but still never have accrued any unlawful presence.

It would appear that, since the 2003 agency split and the creation of DHS, CBP has eschewed all legacy INS guidance and is creating a new, ill considered policy with regard to unlawful presence which forms a radical departure from its sister agency, USCIS, within the Department of Homeland Security, as well as from DOS. This variant interpretation could lead to anomalous results. For example, a non-controlled Canadian citizen who previously had overstayed an alleged six month period of B-2 admission by over 180 days may thereafter seek readmission to the U.S. If that person applies for admission to the U.S. in a status from which he is exempt a U.S. visa – presumably a benefit—he may find himself, depending upon the port of entry at which he applies for admission, subject to a three or ten year bar. If the same alien decides that he wants to enter the U.S. as a Treaty Investor under E-2 classification, he must apply for a U.S. visa with DOS. Since, under DOS policy, this same person is not subject to the three or ten year bar, he would be issued a visa and most likely would be admitted to the U.S. without questioning. This inconsistency between the various agencies with respect to one of the most fundamental issues of immigration law—whether a person is lawfully present in the country or not—is startling.

U.S. Immigration and Customs Enforcement (ICE)

ICE has not issued any official, publicly available agency guidance on what events trigger accrual of unlawful presence, nor are there any precedent decisions which address this issue.

In short, CBP is the only government agency whose policy has departed from the decades-old guidance requiring that some form of written notice be issued to an alien as to his period of authorized stay before his overstay will trigger the particularly harsh consequences of a 3 or 10 year bar. All that is clear is that CBP has departed from the interpretation of other agencies. It is not at all clear what CBP policy is. It appears that there isn't one, or at least not a clear one. Different ports of entry apply the concept differently.

There are sound policy reasons why non-controlled aliens (i.e., Canadian citizens admitted without I-94 issuance) should not be deemed to have accrued any unlawful presence absent a formal finding by the Service or an immigration judge that they are out of status. It is fundamentally unfair to give aliens in her posture no notice of the period for which they are being admitted to the U.S. until after they have allegedly triggered a three or ten year bar. The statute imposing the three and ten year bars suggests that aliens will be on notice that they are accruing unlawful presence. INA § 212(a)(9)(B)(ii) states that an alien is “deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General...” (Emphasis added). The reference to an expiration date indicates that such a date exists and that the alien is aware of it. There are no regulations implementing the three and ten year bars, but legacy INS and DOS guidance has consistently based accrual of unlawful presence on a triggering event. The agency memos refer to expiration of an I-94 Form, a formal finding by an immigration judge, or a formal finding by the Service as the three events that will trigger accrual of unlawful presence. All of those events relate to the alien's receipt of specific notice that he is out of status. USCIS and DOS policy with regard to aliens admitted D/S further support the notion that unlawful presence should not accrue absent formal notice to the alien; since those aliens do not have an expiration date on their I-94 Forms, they do not accrue unlawful presence unless they are informed by an immigration judge or the Service that they are out of status. USCIS and DOS have both issued agency guidance stating that a non-controlled Canadian who enters as a visitor does not accrue unlawful presence absent a finding by the Service or an IJ.

Fundamental fairness requires that an alien receive such notice prior to accrual of unlawful presence. This is particularly true in the case of non-controlled nonimmigrant visitors since the regulations do not prescribe a specific period of admission, but rather a range of six months to a year.

From a policy perspective, it is also undesirable that the multiple government agencies responsible for enforcing the three and ten year bars do not agree upon their applicability. The question of whether an alien is subject to a three or ten year bar from the United States should not be subject to the vagaries of agency interpretation or the particular venue through which he seeks admission to the United States.

1 The IFM is no longer the official CBP manual but has not been replaced and is still being referred to at the ports of entry.

2 The Service has never proposed nor implemented any regulations on the three and ten year bars.

3 The difference between being out of status and unlawfully present is discussed at length in the Service's 2009 memo on unlawful presence.