How do I count my unlawful presence?
It begins when you are here without admission or parole, or when your authorized stay ends. USCIS says most visitors start accruing it if they stay past the date on their Form I-94; the visa stamp is not the measure. People who entered without inspection start on the day of entry. Days count only from age 18, and bona fide asylum applicants and certain other protected groups do not accrue time during protected periods. A timely, nonfrivolous extension or change request can pause the 3-year count for up to 120 days if you did not work without permission. For F, J and I holders, a rule replacing duration of status with fixed dates was blocked nationwide by a Massachusetts federal court on September 14, 2026, and the government appealed on September 30, 2026. Duration of status continues for now, and USCIS says accrual generally starts the day after that status ends. Add up each stay separately and keep your I-94 history.
Does leaving always trigger a bar?
The bars apply only if you leave and then seek admission. USCIS explains the 3-year bar: more than 180 days but less than 1 year in a single stay, leaving voluntarily before removal proceedings began, then seeking admission within 3 years. The 10-year bar covers 1 year or more in a single stay, followed by leaving or removal at any stage. Both run from the day you leave. Staying here does not erase the time, but no bar applies until you go, and that is why the choice of route matters. A person who can adjust status under INA § 245 may never need to leave. Someone who cannot may need a consular visa and a waiver. Do not leave for any reason, even a short family visit, until you know which applies. If you are in court, leaving carries separate risks.
Can I still travel on advance parole?
This changed on August 13, 2026. In Matter of Delcarmen-Lara, the Board overruled a 2012 decision and held that a trip on advance parole is a departure under the 10-year rule. USCIS says it applies this as of that date and warns that people who accrued more than 180 days may be inadmissible when they seek admission again. The Board applied the change going forward only, so earlier trips were not decided against the respondent. It also noted that Eleventh Circuit precedent, which covers Florida, had used the old rule, and said that does not stop it from changing course. Do not rely on an approved Form I-131 or the older text on some agency pages. If you have more than 180 days of unlawful presence, cancel the trip until a lawyer has reviewed it.
Who qualifies for a waiver, and which form do I use?
The waiver requires extreme hardship to a U.S. citizen or permanent resident spouse or parent. Children do not count, and no court may review the decision. Form I-601A lets certain immigrant visa applicants ask before leaving the country; the fee is $795 as of October 2026, with exemptions for VAWA self-petitioners and special immigrant juveniles. The general waiver form, Form I-601, costs $1,050. USCIS says you cannot use the provisional process if you have a final removal order without an approved Form I-212, which costs $1,175, or if you are in court proceedings that are not administratively closed, including a closed case put back on the calendar. In Matter of Medina Madrid the Board, at DHS's request, ordered a case closed for 13 years back on the calendar despite a planned I-601A. So check your court status first, then gather evidence on the citizen or resident relative's health, money and ties.
What is the permanent bar, and how is it different?
A different rule, § 212(a)(9)(C), applies if you were unlawfully present for more than 1 year in total, or were ordered removed, and then enter or try to enter without being admitted. It adds up all stays, while the 3-year and 10-year rules look at a single stay. USCIS says the exceptions for minors and asylum applicants do not apply to it. The statute requires seeking admission more than 10 years after your last departure, with prior consent to reapply, generally on Form I-212. So a second crossing after a long overstay can be far worse than the original overstay. If you have ever crossed the border again after leaving, tell a lawyer before you file any petition. A prior order also raises the reinstatement risk described under INA § 241. Do not attempt another entry to fix a case.
What should I do before leaving or filing anything?
Build your own record first. List each entry and exit, every I-94 date, each status and every pending application. Request your I-94 history. Check whether you ever had a case: our guide to finding your court and hearing date shows how, since an unknown order can defeat a waiver. Review any statement on past forms, because fraud or misrepresentation needs its own waiver. Confirm how long the embassy needs, and check the current position on visa issuance for your nationality before you book a flight. If a family petition is the plan, the Form I-130 alone gives no right to stay. Ace Immigration's waiver practice can check your count and your route. Bring your passport, I-94 records and any notices from USCIS or a court.