Unlawful presence is defined by the statute as being present in U.S. “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” INA §212(a)(9)(B)(ii), 8 U.S.C. §1182(a)(9)(B)(ii).In the case of a nonimmigrant person, the unauthorized stay only includes periods of stay beyond the date specified on the I-94 or, in case an extension was granted, on the USCIS Approval Notice.
For a person who applied for Adjustment of Status, time in unlawful status that accrued prior to the filing of the application counts toward the 180-day/1 year periods. According to INA §212(a)(9)(B)(ii) (I) and 8 U.S.C. §1182(a)(9)(B)(ii)(I), beginning April 1, 1997 a person who is unlawfully present in the U.S. for a period of more than 180 consecutive days but less than 1 year who voluntarily departs the U.S. before commencement of proceedings is barred from readmission for 3 years from the date of the person’s departure or removal. While a person who is unlawfully present in the U.S. for one year or more consecutively and seeks admission is barred for 10 years from the date of such person’s departure or removal from the U.S. [INA §212(a)(9)(B)(ii) (II), 8 U.S.C. §1182(a)(9)(B)(ii)(II)]. Unlike the 3-year bar, a person is subject to 10-year bar whether or not she/he departs during or after proceedings.
Even if a person is granted Advance Parole, if that person was unlawfully present in the U.S. for 180/1 year prior to filing an Adjustment of Status application will be subject to the 3/10 year bar upon return. As a rule, USCIS should not issue an advance parole if they know the person would be subject to removal upon her/his return unless it appears likely that a waiver would be granted. However, some times an advance parole is issued anyway. In that situation, a person who accrued unlawful presence prior to filing an Adjustment of Status should not leave the U.S. to avoid the 3/10 year bar upon his/her return.
Nonetheless, if the person leaved the U.S., there are a few exceptions to the unlawful presence statute. One of the exceptions is the tolling for a good cause [8 U.S.C. §1182(a)(9)(B)(iv)] where the time period of unlawful presence in regard to the 3-year bar is tolled for 120 days if the person has been lawfully admitted or paroled, has filed a nonfrivolous application for a change of extension before the date of expiration of the period of stay authorized by the Attorney General and has not been employed without authorization before or during the pendency of such application. This tolling period does not apply to persons subject to the 10-year bar.