FAQs About Accrued Unlawful Presence

4 February 2016
 Categories: Law, Blog


If you are a foreign student in the United States on a non-immigrant visa, it is important that you leave the country by the expiration date on the document. In the event that you fail to do so, you can begin to accrue unlawful presence, which could have an impact on whether or not you can legally enter the country in the future, including legal immigration proceedings. If you are in danger of staying beyond the expiration date, here is what you need to know.

Why Is Accrued Unlawful Presence Important?

Unlawful presence refers to the amount of time you are in the country beyond your visa's expiration date. The time that you accrue can have a bearing on how likely it is that the government will deem you inadmissible to re-enter the country in the future. It can also have an impact on whether or not an application for another visa or a green card would be accepted.

How Is Accrued Unlawful Presence Determined?

Depending on the type of visa you have, determining exactly how much unlawful presence you have accrued can be complicated. For instance, if you have a F-1 or J-1 visa, a formal determination must be made by the U.S. Citizenship and Immigration Services, or USCIS.

Unlike other visas, such as a M-1 visa, the F-1 or J-1 does not have a definite expiration date stated on the document. Instead, students are allowed to remain in the country for a period known as the "duration of status."

With both types of visa, you are allowed to stay in the country as long as you are pursuing your studies. How long this could be depends on the program in which you are enrolled and how long it takes you to complete this. You are also allowed a grace period following the end of your studies to prepare for leaving the country. It is because of this, the USCIS will have to review your school records and determine exactly what the expiration date should be.

What If You Overstayed?

If you did overstay, you have a couple options available to you. If you are eligible to apply for a different visa or green card, apply for it. You might be allowed to remain in the country while awaiting the decision of the USCIS on your application.

You also have the option of returning home. Once you are at home, you can apply for re-entry to the country. However, if you were deemed inadmissible due to overstaying your visa, you might be subject to a temporary ban. If so, you cannot re-enter the country until the ban is lifted.

Overstaying can work against you if you want to stay in the country. Consult with immigration lawyers to further learn about accrued unlawful presence and how it applies to your case.