Also known as: unlawfully present · UP · unlawful stay
Written by attorneys · grounded in primary & secondary sources — see below
The condition of being present in the United States without having been admitted or paroled or after the expiration of authorized nonimmigrant status.
Select any source to read its text and confirm it supports the definition.
Umar Usmani enters on a student visa that expires in June. He remains in the country through December without applying for an extension. His continued presence after the expiration date places him in unlawful presence. Any departure after six months of this status subjects him to a three-year reentry bar.
Uliana Ustinova is paroled into the country for medical treatment that concludes in March. She stays an additional five months without obtaining new authorization. The time after her parole ends counts as unlawful presence. This exposure prevents her from adjusting status without first departing and triggering inadmissibility.
Urban Utley enters under the visa waiver program for a ninety-day visit. He remains thirty days past the permitted period. Although under 180 days, the overstay voids the visa waiver privilege for future entries. He must apply for a new visa in his home country before returning.
Ursula Upton accrues four months of unlawful presence, departs, and later returns on a new visa. She again overstays by four months on the second visit. Because unlawful presence periods are not cumulative, neither stay alone triggers the ten-year bar. She remains eligible to seek a waiver upon her next departure.
Ulf Ulfsson receives a grant of parole that ends in January. He leaves briefly in February but reenters without inspection the following week. The time after parole expiration continues to run as unlawful presence despite the short trip abroad. Any future departure after six total months activates the three-year inadmissibility ground.
Una Ueda holds a temporary work visa that lapses in September. She continues working without renewal for seven months. The period after expiration constitutes unlawful presence. Upon leaving the country she faces both the three-year bar and the loss of any pending adjustment application.
Unlawful presence is not generally cumulative. Two separate four-month periods of unlawful presence will not constitute grounds of inadmissibility under the statute.
Supporting sources
Persons who remain in the U.S. unlawfully for fewer than 180 days do not entirely escape sanction. INA § 222(g) denies readmission to nonimmigrants who stay beyond the expiration of their status unless they apply for a new nonimmigrant visa in their country of origin.
Supporting sources
The INA defines unlawful presence as being present in the U.S. without being admitted or paroled, or being present after the non-citizen’s nonimmigrant status expires.
Supporting sources
…of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the safety of students and teachers, and this, in turn, undermines the quality of education in our…