What is “unlawful presence?”

If you’re out of status and you continue to stay in the U.S. for 180 days, as soon as you leave the U.S., you will not be able to reenter for 3 years. If you stay for 365 days, as soon as you leave the U.S., you will not be able to reenter for 10 years. This is known as the 3 and 10 year bar to reentry. You may be able to file a successful waiver of the 3 and 10 year bar under certain circumstances should you find yourself in this situation, but that is beyond the scope of this FAQ. If you don’t have an expiration date on your I-94 but instead have D/S, you are authorized to stay in the U.S. so long as you are maintaining your status by pursuing your studies, training, etc. However, you can still fall out of status and begin to incur unlawful presence for any number of reasons should you fail to maintain your status; for example, you stop attending classes without approval or you work without authorization, etc.

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