The 3-year and 10-year bars (unlawful presence): how it is counted and when it starts

More than 180 days of unlawful presence triggers the 3-year bar; one year or more triggers 10 — and the clock starts on the day of departure, not before.

The 3-year and 10-year bars are federal inadmissibility grounds — formally, unlawful presence under INA §212(a)(9)(B), 8 U.S.C. §1182(a)(9)(B) — and their least-known feature is this: they are not triggered by staying, they are triggered by leaving. More than 180 days of unlawful presence followed by a voluntary departure before removal proceedings commence produces a 3-year bar; one year or more of unlawful presence produces a 10-year bar. In both cases the period begins to run on the day of departure or removal, and the law applies it when the person again seeks admission — not because of the time spent here.

This page explains what unlawful presence is under the statutory text, why it is not the same as being “out of status”, when the clock does not run, and what the law does — and does not — say about waivers. Verified against the US Code and the USCIS Policy Manual as of August 11, 2026. This is general information, not legal advice.

Unlawful presence is not the same as being out of status

This is the most expensive confusion in the topic, and USCIS clears it up in its own words:

“Lawful immigration status is distinct from being in a period of authorized stay. Periods of authorized stay are only relevant when determining an alien’s accrual of unlawful presence for inadmissibility purposes. Although an alien in a lawful immigration status is also in a period of authorized stay, the opposite is not necessarily true. Those in a period of authorized stay may or may not be in a lawful immigration status.”
— USCIS Policy Manual, 7 USCIS-PM B.3(D) · accessed August 11, 2026

The statute does not define unlawful presence by status. It defines it by the period of stay authorized:

“For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”
— 8 U.S.C. §1182(a)(9)(B)(ii) (Cornell LII) · accessed August 11, 2026

USCIS gives the example that makes the difference visible: a pending adjustment of status application places a person in a period of authorized stay, so no unlawful presence accrues while it is pending — “however, although an alien is in a period of stay authorized, it may be that the alien is in unlawful status” (7 USCIS-PM B.3, footnote 17). And the matching half, from the same source: “A pending application to extend or change status (Form I-129 or Form I-539), a pending adjustment application, or a pending petition does not confer lawful immigration status on an applicant.”

	Being “out of status”	Accruing unlawful presence
What it measures	Whether the person holds a currently valid lawful immigration status	Whether the person is here after the authorized period of stay, or without admission or parole
Where it comes from	INA / status regulations	8 U.S.C. §1182(a)(9)(B)(ii)
Direct consequence	A separate question this page does not cover	The 3-year or 10-year clock, which is triggered on departure
Can one exist without the other?	Yes — a person can be out of status without accruing unlawful presence	Yes — per USCIS the two concepts do not fully overlap

None of this settles any individual’s situation: who is in a period of authorized stay depends on the full record, and that is precisely the point to review with a licensed immigration attorney.

The two bars, and the asymmetry almost nobody mentions

The statute treats the two periods differently. The 3-year bar requires a voluntary departure before proceedings commence; the 10-year bar carries no such condition.

“(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) of this title) prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien’s departure or removal, or (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.”
— 8 U.S.C. §1182(a)(9)(B)(i) (Cornell LII) · accessed August 11, 2026

	3-year bar	10-year bar
Unlawful presence accrued	More than 180 days, but less than 1 year	1 year or more
Does the statute require a voluntary departure?	Yes — and before proceedings commence	The text sets no such condition
When the period starts running	Day of departure or removal	Day of departure or removal
What triggers it	Again seeking admission within the period	Again seeking admission within the period

The clock starts on the day of departure

“The statutory 3-year or 10-year period begins to run on the day of departure or removal (whichever applies) after accrual of the period of unlawful presence.”
— 8 USCIS-PM O.6(B) · accessed August 11, 2026

That is what makes departure the decisive legal event: while the person has not left, there is no period running and no request for admission to refuse. It is also why adjustment of status versus consular processing carries so much weight for anyone who has accrued unlawful presence — consular processing requires departure.

The clock runs wherever the person is

A widespread belief is that the bar has to be “served” abroad for the time to count. USCIS says the opposite:

“This statutory period continues to run, without interruption, regardless of whether or how the alien returned to the United States during the 3-year or 10-year period. Thus, it is immaterial whether the alien has spent the applicable statutory 3-year or 10-year period in or out of the United States.”
— 8 USCIS-PM O.6(B) · accessed August 11, 2026

The sentence USCIS places immediately after that one matters just as much and is almost always dropped:

“Note however, that the manner in which the alien returned to the United States during the statutory 3-year or 10-year period may result in the accrual of a new period of unlawful presence or result in inadmissibility under other grounds.”

In other words: the fact that the period keeps running does not make returning harmless. How a person returned can open a separate problem — including the one described below under §212(a)(9)(C).

The five exceptions: when the clock does not run

The statutory text lists five situations in which time is not taken into account in calculating unlawful presence (8 U.S.C. §1182(a)(9)(B)(iii)):

Minors. “No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i).”
Pending asylum application. No period of time with a bona fide asylum application pending under section 1158 is taken into account — unless the person “was employed without authorization” during that period.
Family unity. No period of time in which the person is a beneficiary of family unity protection under section 301 of the Immigration Act of 1990 is taken into account.
Battered women and children. Clause (i) does not apply to a person who would be described in paragraph (6)(A)(ii) if “violation of the terms of the alien’s nonimmigrant visa” were substituted for “unlawful entry into the United States” in subclause (III) of that paragraph.
Victims of a severe form of trafficking in persons. Clause (i) does not apply to a person who demonstrates that the severe form of trafficking (as defined in section 7102 of title 22) was at least one central reason for the unlawful presence.

All five are in the statutory text, not in internal guidance, and they are categorical: they describe situations, they do not award an automatic outcome to anyone. Text of 8 U.S.C. §1182, accessed August 11, 2026.

The 120-day tolling: narrow, and only for the 3-year bar

The statute allows the count to be tolled for up to 120 days while a change- or extension-of-status application is pending. Two details that usually get lost: the cap is 120 days, and the statutory cross-reference is to clause (i)(I) — the 3-year computation — not the 10-year one.

“the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.”

The three conditions, from the text itself: the person “(I) has been lawfully admitted or paroled into the United States, (II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and (III) has not been employed without authorization in the United States before or during the pendency of such application.” — 8 U.S.C. §1182(a)(9)(B)(iv), accessed August 11, 2026.

The waiver that is in the statute: the qualifying relative is a spouse or parent — never a child

This is the single most misunderstood point in the topic. The statutory unlawful presence waiver measures extreme hardship to a spouse or parent who is a US citizen or lawful permanent resident. A US citizen son or daughter does not work as the qualifying relative for this waiver.

“The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.”
— 8 U.S.C. §1182(a)(9)(B)(v) · accessed August 11, 2026

The I-601A provisional waiver: what it does and what it does not do

The provisional unlawful presence waiver (Form I-601A) allows the waiver to be requested inside the United States, before departing for the consular interview. USCIS describes it as a process for people who are statutorily eligible for an immigrant visa and who “only” need a waiver of inadmissibility for unlawful presence. It covers that ground and no other.

What the I-601A does not do, in USCIS’s words:

“The provisional waiver process does not change the immigrant visa process. Even if your provisional unlawful presence waiver is approved, you are still required to depart the United States to process your immigrant visa at a U.S. Embassy or U.S. Consulate abroad. The approval of a provisional unlawful presence waiver does not make you eligible for adjustment of status in the United States.”
— USCIS, Provisional Unlawful Presence Waivers · accessed August 11, 2026

Other conditions and exclusions USCIS publishes on that same page (accessed August 11, 2026):

Be physically present in the United States to file the application and provide biometrics.
Be 17 years of age or older.
Be inadmissible only because of a period of unlawful presence under §212(a)(9)(B)(i)(I) or (II).
Final order of removal, exclusion or deportation — including an in absentia order under INA 240(b)(5): USCIS allows a provisional waiver request only if Form I-212 (permission to reapply for admission) has been applied for and already approved by USCIS at the time the I-601A is filed.
Being in removal proceedings: USCIS treats this as ineligibility unless, at the time the I-601A is filed, the proceedings are administratively closed and have not been returned to the EOIR calendar.

On the qualifying-relative requirement, USCIS publishes a garbled sentence on its own page (“your U.S. citizen or spouse or parent who is a legal permanent resident”). We do not repair it here: the governing rule is the statutory text quoted in the section above — extreme hardship to the citizen or lawfully resident spouse or parent.

The current Form I-601A carries edition date 01/20/25 and is filed to the USCIS Chicago lockbox; the initial evidence USCIS lists includes evidence of the relationship to the qualifying relative, evidence of extreme hardship, and a copy of the Form I-797 approval notice for Form I-212, if applicable (uscis.gov/i-601a, page last reviewed/updated 06/01/2026 · accessed August 11, 2026).

On the fee: the current I-601A amount is published on the USCIS fee schedule, Form G-1055. This page states no figure for it because USCIS renders those amounts in the browser and it was not possible to verify them against the source; check the G-1055 before paying anything.

⚠️ Form I-601 and Form I-601A are different filings. The I-601 (waiver of grounds of inadmissibility, filed in immigration court) carries its own fee: $2,120 total for fiscal year 2026, applicable to filings postmarked on or after February 1, 2026 (from our fee dataset, as_of 2026-08-07). They are separate filings with separate fees and are not interchangeable.

When bars stack

Unlawful presence is not the only inadmissibility that can apply, and USCIS confirms the grounds stack rather than replace one another: “It is possible that an alien’s immigration history makes the alien inadmissible under both the 3-year or 10-year unlawful presence grounds of inadmissibility and the permanent unlawful presence ground of inadmissibility” (8 USCIS-PM O.6(C), accessed August 11, 2026).

§212(a)(9)(C) — the ground commonly called the “permanent bar”. The text requires unlawful presence of more than 1 year in the aggregate, or a removal order, plus entering or attempting to reenter without being admitted. “Permanent” is a term of art: the statute itself contemplates a consent route more than 10 years after the last departure, and a waiver for VAWA self-petitioners.
§212(a)(9)(A) — a prior removal order is a separate inadmissibility ground with its own periods.

The detail on those two grounds, including Form I-212, lives on its own page: After a deportation: what US law requires before you can return.

What the sources do not say

Naming what a source is silent about is part of the information. As of August 11, 2026:

The statute never defines “extreme hardship.” §1182(a)(9)(B)(v) commits it to the Attorney General’s “sole discretion” and strips court review. Neither the statute nor the provisional waiver page offers a standard, a checklist, or examples.
Nothing in §212(a)(9)(B) forgives unlawful presence for someone who never leaves. The sources are silent on any in-country cure: the inadmissibility is triggered by seeking admission. Saying the bar attaches on departure describes the statute — it is not advice about staying, and this page does not turn it into any.
USCIS does not say how long an I-601A takes to adjudicate. Neither the process page nor the form page gives a processing time.
Chapters 1 through 5 of Part O, Volume 8 of the USCIS Policy Manual are published as “[Reserved]”. USCIS has no live policy-manual text on the definition and accrual of unlawful presence; only Chapter 6, on the effect of seeking admission, exists. Anyone citing “the USCIS Policy Manual” for accrual mechanics is citing the 2009 AFM consolidation memo, not current manual text.
None of the sources consulted addresses duration-of-status (D/S) admissions. Students and exchange visitors admitted for “duration of status” have no date-certain “period of stay authorized”, and none of the sources explains how the statutory definition applies to them. We do not infer it here.

If you overstayed your visa — paths to legal status — the paths that exist for someone admitted with inspection who stayed
If you entered without inspection — the other way into the statutory definition of unlawful presence
Adjustment of status vs consular processing — why leaving the country is the event that triggers the bar
Form I-485 — adjustment of status — the application that, while pending, USCIS treats as a period of authorized stay
After a deportation: permission to return — §212(a)(9)(A), the permanent bar ground, and Form I-212
Find an immigration attorney — pro bono lists, AILA, and BIA-recognized representatives

Official sources: 8 U.S.C. §1182 (Cornell LII) · USCIS Policy Manual, 8 USCIS-PM O.6 · USCIS Policy Manual, 7 USCIS-PM B.3 · USCIS — Provisional Unlawful Presence Waivers · USCIS — Form I-601A · USCIS — fee schedule G-1055

Last verified: 2026-08-11. General information, not legal advice. How much unlawful presence a person has accrued, whether any of the five statutory exceptions applies, and what would happen on departure all depend on the full record: consult a licensed immigration attorney or a DOJ/BIA-accredited representative before leaving the United States or filing anything.

Frequently asked questions

Is being out of status the same thing as accruing unlawful presence?

No. They are distinct concepts, and USCIS says so in its own Policy Manual: although a person in a lawful immigration status is also in a period of authorized stay, the opposite is not necessarily true. A person can be in a period of authorized stay — and therefore not accruing unlawful presence — while not holding lawful status. The example USCIS gives is a pending adjustment of status application. (USCIS Policy Manual, 7 USCIS-PM B.3, accessed August 11, 2026.)

When does the 3-year or 10-year clock start running?

On the day of departure or removal. USCIS puts it this way: the statutory 3-year or 10-year period begins to run on the day of departure or removal, after accrual of the period of unlawful presence. The inadmissibility is not triggered by the stay itself but by again seeking admission within that period. (8 USCIS-PM O.6(B) and 8 U.S.C. §1182(a)(9)(B)(i), accessed August 11, 2026.)

Does a person have to stay outside the United States for the full 3 or 10 years?

According to USCIS, the statutory period continues to run without interruption regardless of whether or how the person returned to the United States, and it is immaterial whether the period was spent inside or outside the country. USCIS warns on the same page, however, that the manner of return may cause a new period of unlawful presence to accrue or create inadmissibility on other grounds. (8 USCIS-PM O.6(B), accessed August 11, 2026.)

Does time spent in the United States while under 18 count?

No. The statute says no period of time in which a person is under 18 years of age is taken into account in determining the period of unlawful presence under that clause. It is one of five exceptions the statutory text itself lists. (8 U.S.C. §1182(a)(9)(B)(iii), accessed August 11, 2026.)

Does the I-601A provisional waiver allow a person to get a green card without leaving the country?

No. USCIS is explicit: the provisional waiver process does not change the immigrant visa process, and even with an approved provisional waiver a person is still required to depart the United States to process the immigrant visa at a US embassy or consulate. USCIS adds that approval of a provisional unlawful presence waiver does not make a person eligible for adjustment of status in the United States. (USCIS, Provisional Unlawful Presence Waivers, accessed August 11, 2026.)

Does the I-601A waiver help when there is already a removal order?

Not on its own. USCIS excludes from the provisional waiver anyone with a final order of removal, exclusion or deportation — including an in absentia order under INA 240(b)(5) — unless Form I-212 has already been applied for and approved at the time the I-601A is filed. (USCIS, Provisional Unlawful Presence Waivers, accessed August 11, 2026.)

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General information, not legal advice. MigrantUSA is an independent publisher and is not a law firm; using this site does not create an attorney-client relationship, and this content is not a substitute for advice from a licensed attorney about your specific situation. US federal, state, and local government procedures, fees, and forms change. Always verify current details directly with the relevant agency before acting. For immigration, tax, or other legal matters specific to your situation, consult a licensed attorney or BIA-accredited representative.