Under section 212(a)(9)(B) of the Immigration and Nationality Act, noncitizens who were unlawfully present in the U.S. for more than 180 days, who departed the U.S. before any removal proceedings were commenced against them, and who then seek admission to the U.S. are inadmissible for a period of three years.  Noncitizens who were unlawfully present in the U.S. for one year or more who leave the country and then seek admission to the U.S. are inadmissible for a ten-year period.

The statute provides that the following periods of time do not count towards the accrual of unlawful presence:  periods during which a noncitizen is under 18 years of age, or has a pending bona fide asylum application (provided the individual has not engaged in unauthorized employment), or has Family Unity status, or is in violation of the terms of a nonimmigrant visa because of abuse by a U.S. citizen or lawful permanent resident spouse or parent.  The INS considers as lawfully present individuals who file applications with the INS for adjustment of status to lawful permanent residence, as long as that application is pending.

In addition, the statute provides that noncitizens lawfully admitted or paroled into the U.S. and who, before the expiration of their lawful status, file a nonfrivolous application for extension of stay or change of status (to change to a different nonimmigrant status) will not be considered unlawfully present during the time the application is pending, for up to 120 days.  (Such consideration, however, will be extended to them only if they do not engage in unauthorized employment.)  The INS memo notes that the 120-day limit was based on Congress’s expectation that the agency would adjudicate such applications within that time period.  According to the memo, because of backlogs "which in some cases tend beyond six months," noncitizens with pending applications for extension of stay or change of status may become subject to the three-year bar, or even the ten-year bar, if the tolling of the period of unlawful presence is limited to 120 days.  In order to account for such delays, the INS made this change in policy.

The memo notes that the tolling of unlawful presence beyond 120 days applies only to nonimmigrants who were admitted for a time period set to end on a specific date.  By contrast, nonimmigrants who are admitted for the duration of their stay, such as F-1 students, cannot begin to accrue unlawful presence until the INS or an immigration judge finds that they violated their status.