Distinction Between “Unlawful Status” and “Unlawful Presence”

Aliens who are unlawfully present and voluntarily departed the United States may face the three-year, ten- year and permanent bar when seeking readmission. However, being in an unlawful immigration status does not necessarily accrue unlawful presence.

There are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. For example, minors who are under 18 years of age, aliens with pending asylum applications, certain battered spouses, parents and children, nonimmigrants with pending requests for extension of status or change of status, and etc, will not accrue unlawful presence.