Under U.S. immigration law, children under age 18 generally do not accrue unlawful presence, even if they are in the United States without a valid immigration status. This rule is based on INA 212(a)(9)(B)(ii) and helps protect minors from certain long-term immigration penalties.
Table of Contents
- What Is Unlawful Presence?
- How the Rule Applies to Children
- What Happens When a Child Turns 18?
- I-94 and Duration of Stay for Children
- Tips for Parents and Guardians
- Summary
- Helpful Links
What Is Unlawful Presence?
Unlawful presence begins when a person is:
- In the U.S. without being admitted or paroled, or
- Stays past the expiration date listed on their Form I-94.
Unlawful presence can lead to serious immigration consequences, including being barred from returning to the U.S. for 3 or 10 years, depending on the length of the unlawful stay.
How the Rule Applies to Children
The law provides an exception for minors. According to INA 212(a)(9)(B)(iii)(I):
“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…”
This means:
- Children under 18 do not accrue unlawful presence, even if they are in the U.S. without status.
- Overstays or undocumented presence before age 18 will generally not lead to a reentry bar later.
What Happens When a Child Turns 18?
Once a child turns 18:
- Unlawful presence starts immediately if they are still in the U.S. without valid status.
- If the child stays 180 days or more after turning 18, they may face a 3-year bar from returning.
- If the stay reaches 365 days, the 10-year bar applies.
It’s important to act before the child’s 18th birthday if their immigration status is uncertain.
I-94 and Duration of Stay for Children
Many children enter the U.S. with a Form I-94, which shows how long they are allowed to stay.
- If the I-94 has a specific “Admit Until” date, they must leave by that date.
- If it says “D/S” (Duration of Status), they may stay as long as they are in their program or valid visa status.
Even though children under 18 don’t accrue unlawful presence, it’s still important to maintain legal immigration status whenever possible.
Tips for Parents and Guardians
- Keep all documents, including passports, visas, and I-94 records.
- Track expiration dates of visas and stay periods.
- Apply for extensions or changes of status before a child turns 18.
- Speak with an immigration attorney early if your child’s status is unclear.
Summary
Children under 18 do not accrue unlawful presence in the U.S. However, once they turn 18, the clock starts ticking if they are still here without status. It’s important for families to plan ahead and make sure legal status is maintained to avoid future problems.
Need Help Understanding Your Child’s Immigration Status?
Contact a qualified immigration attorney for guidance before your child turns 18.
Schedule a Consultation with an Immigration Lawyer
Citations
We Can Help!
If you have questions regarding a U.S. immigration matter, we invite you to contact our team at Richards and Jurusik for detailed guidance and assistance. We aim to provide the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people to work and live in the United States. Please read some of our hundreds of 5-star client reviews! Contact us today to assess your legal situation.
JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
