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The 3- and 10-Year Bars: How Unlawful Presence Is Counted
The bars themselves are simple to state: more than 180 days of unlawful presence then departure means three years; a year or more means ten. The statute and its three written-in exceptions are on what the previous-travel section screens for.
This page is about the part the statute does not spell out — how the days are counted — which is where most of the fear, and most of the mistakes, come from. Everything below is from 9 FAM 302.11-3, read on 22 September 2026. Not legal advice: if you are near either threshold, this is a lawyer's question.
The clock does not add up across trips
Neither of the INA 212(a)(9)(B)(i)(I) (180+ days but less than a year) or INA 212(a)(9)(B)(i)(II) (one year+) time frames is cumulative across trips. The unlawful presence must occur in the same trip to the United States, and periods of unlawful presence accrued on separate trips cannot be added together.
Four months over on one visit and four months over on another is not eight months for this ground. Separate periods within the same stay — for example before and after a grant of voluntary departure — are added together.
Other rules can still apply to each of those overstays. An overstay can void the visa you entered on, and an officer will read your history under 214(b).
Two days that do not count
…the actual date that the Form I-94 (or any extension) expires is authorized and is not counted. In addition, the date of departure from the United States is not counted as unlawful presence.
The clock runs from the day after your I-94 date — not from the expiry of your visa, which is a different document. See visa validity vs how long you can stay.
Students and exchange visitors on D/S
If you were admitted for duration of status — "D/S" on the I-94, usual for F, J, A, G and I — there is no date for the clock to start from. The manual says:
Unlawful presence will not accrue for persons who have been admitted for duration of status (DOS)… unless DHS, IJ, or the BIA finds a status violation in the context of a request for an immigration benefit or during removal proceedings.
The clock then starts the day after the finding, not on the date the violation happened. The manual's own example: a DHS letter dated 1 December 2008 saying the applicant was out of status from 28 May 2001 means unlawful presence began on 2 December 2008.
That is not the same as saying a status violation has no consequences — it can still bear on a later visa, and INA 222(g) has its own rules for D/S. It means the three- and ten-year clocks work differently.
A pending extension or change of status
If you filed to extend your stay or change status and remained after your I-94 date while waiting, the manual says DHS treats the entire time the application is pending as authorized stay, provided that:
- it was filed before your I-94 expired;
- it was nonfrivolous — an arguable basis in law and fact, not filed as an excuse to stay. It does not need to have been approvable; and
- you did not work without authorization, before or after filing.
The statute's own tolling provision gives only 120 days, and only for the three-year bar. The manual explains that DHS extended it to the whole pendency because processing backlogs meant applicants "could incur the three or 10-year penalties through no fault of their own."
Other periods treated as authorized stay include a properly filed adjustment of status (even if later denied, unless filed defensively), TPS, deferred action, and the period of a grant of voluntary departure if you leave on its terms. Unlawful presence accrued before one of these is not cured by it.
The two bars treat removal differently
- Three-year bar: applies only if you left voluntarily, before DHS commenced proceedings. If you had more than 180 days but less than a year and were placed in proceedings before leaving, the manual says you are not ineligible under the three-year bar.
- Ten-year bar: applies whether you departed "before, during, or after removal proceedings and regardless of whether the individual departed on their own initiative or under removal order."
A removal also triggers a separate ground with its own clocks, covered on after a removal. Both can apply at once. Coming back without being admitted after a year of unlawful presence or a removal is a third ground again — the permanent bar, which counts time differently.
Leaving on advance parole is not a "departure"
Following Matter of Arrabally and Yerrabelly (BIA 2012), someone who leaves and returns under a grant of advance parole has not made a "departure" for this ground — so the trip does not trigger the bar. The manual is careful that this does not make other grounds inapplicable.
Other periods that do not count
Beyond the statute's three (under 18, a bona fide asylum claim without unauthorized work, family unity), the manual records:
- Trafficking victims — the bar does not apply where a severe form of trafficking was "at least one central reason" for the unlawful presence.
- Battered spouses and children — for immigrant visas, where the abuse began before, and led to, the overstay.
- Before 1 April 1997 — the provision is not retroactive, so no earlier day counts.
On the asylum exception, the manual says the officer's first question is whether you worked without authorization while the claim was pending. If you did at any point on or after 1 April 1997, the exception is lost. The manual also notes that asylum applicants can receive a DHS employment authorization document, so officers are told to examine carefully whether particular work was in fact unauthorized.
Is there a waiver?
Nonimmigrant visas: yes. The manual says applicants may seek a 212(d)(3)(A) waiver, requested through the ARIS system. That waiver has no qualifying-relative requirement.
Immigrant visas: a waiver under §212(a)(9)(B)(v) exists for the spouse, son or daughter of a U.S. citizen or LPR, where refusal would cause extreme hardship to a U.S. citizen or LPR spouse or parent. Note who must suffer the hardship: a spouse or parent, not a child.
The I-601A provisional waiver lets eligible immigrant-visa applicants apply from inside the United States before leaving for the interview. Among the manual's conditions: you must be at least 17, physically present, and ineligible solely for unlawful presence. K fiancé(e) beneficiaries cannot use it. An approved I-601A is revoked automatically if the officer finds any other ground of ineligibility.
Frequently asked questions
I overstayed twice, four months each time. Do I have a three-year bar?
Not under this ground. The manual says the time frames are not cumulative across trips; unlawful presence on separate trips cannot be added together. Each overstay can still matter in other ways.
I was on an F-1 and dropped out of school. Am I accruing unlawful presence?
If you were admitted for duration of status, the manual says unlawful presence does not accrue unless DHS, an immigration judge or the BIA makes a formal finding of a status violation — and then only from the day after the finding. The status violation can still have other consequences.
Does the day my I-94 expires count?
No. The manual says the I-94 expiry date itself is authorized, and the date of departure is not counted either.
I filed an extension before my I-94 expired and it was denied months later. Did I accrue unlawful presence?
Under the manual, the whole period the application was pending counts as authorized stay if it was timely, nonfrivolous and you did not work without authorization. Time after the denial is a separate question.
I was put in removal proceedings after overstaying seven months, then left. Is there a bar?
The manual says the three-year bar applies only to departures before proceedings commenced, so it would not apply. The ten-year bar has no such condition but needs a year or more. A removal order raises a separate ground.
Can I get a tourist visa during a three- or ten-year bar?
A 212(d)(3)(A) nonimmigrant waiver is available and requires no qualifying relative. Whether one is recommended depends on the case.