What is "unlawful presence"?

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The CIS has defined unlawful presence very carefully in their Adjudicator's Field Manual, in Chapter 30.1 (d): 

(d) Unlawful Presence under Section 212(a)(9)(B) of the Act.

(1) Counting of Unlawful Presence for Nonimmigrants. An alien who remains in the United States beyond the authorized period of stay is unlawfully present and becomes subject to the 3- or 10-year bar to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act. Under current Service policy, unlawful presence is counted in the following manner for nonimmigrants:

(A) Nonimmigrants Admitted until a Specific Date. Nonimmigrants admitted until a specific date begin accruing unlawful presence on the date the authorized period of admission expires, as noted on Form I-94, Arrival/Departure Card.

(B) Nonimmigrants Admitted Duration of Status (D/S). Nonimmigrants admitted to the United States for D/S begin accruing unlawful presence on the date USCIS finds a status violation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings. If, however, the immigration judge concurrently issues voluntary departure and the alien complies with the order by making a timely departure, no unlawful presence accrues. See sections (d)(2) and (d)(5) of this chapter regarding voluntary departure as a period of stay authorized by the Attorney General.

(2) Authorized Period of Stay. USCIS has also designated the following as authorized periods of stay:

  • Voluntary departure;
  • Refugee status;
  • Asylee status;
  • Grants of withholding or deferral of removal under the United Nations Convention Against Torture;
  • Legalization and special agricultural worker applications for lawful temporary residence which are pending through an administrative appeal;
  • Grants of withholding or suspension of deportation, or cancellation of removal;
  • Applications for temporary and permanent residence by Cuban-Haitian entrants under section 202 (b) of Pub. L. 99-603 through administrative appeal;
  • Grants of Temporary Protected Status and Deferred Enforced Departure;
  • Applications for adjustment of status under section 245 of the Act (including section 245(i)), and registry applications under section 249 of the Act, if properly filed with INS or USCIS. The period of stay authorized by the Attorney General continues if the application is denied and renewed in proceedings, through review by the Board of Immigration Appeals (BIA). The alien must, however, be eligible to renew the denied application in proceedings and have a legal basis for renewing that application; and
  • Certain pending applications for extension of stay or change of status. See sections (d)(3) and (d)(4) of this chapter.

(3) Requirements for Authorized Period of Stay with Respect to Pending Change of Status and Extension Applications.

(A) The application for change of status or for extension of stay was filed timely. To be considered timely, the application must have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1(c)(4) and 8 CFR 248.1(b).

(B) The alien did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and

(C) The change of status or extension application has been pending with INS or USCIS for more than 120 days after the date the I-94 expired.

In addition, the CIS has published a lengthy memorandum on the subject of unlawful presence. You may read it by clicking here.