Understanding Unlawful Presence

Understanding Unlawful Presence

Overview

In 1996, the Illegal Immigration Reform and Immigrant Responsibility added a ground of exclusion for an alien “unlawfully present” under certain circumstances.1 “Unlawfully present” under the Immigration and Nationality Act § 212(a)(9)(B)(ii) means that the alien is in the United States after overstaying an authorized period of admission or is present without being admitted or paroled.2 Exclusion is for a person unlawfully present for between 180 days to less than one year who departs the United States voluntarily before a removal proceeding.3

The Board of Immigration Appeals held that one who temporarily departs the U.S. under a grant of advance parole based on a pending application for adjustment of status and then returns has not made a “departure” from the United States and therefore has not triggered the unlawful presence bar, which is three years.4 The bar does not apply to someone who would adjust status in the United States who has not departed.5 If the person has been unlawfully present for one year or more the bar is for ten years.6

When is the provision inapplicable?

No period of unlawful presence prior to April 1, 1997 is counted.7
No period of time under the age of 18 is taken into account.8
No period of time during which a person has a bona fide application for asylum pending is taken into account (unless during that period of time, the person had unauthorized employment).9
No period of time in which the person is the beneficiary of the Family Unity provision pursuant to § 301 of the Immigration Act of 1990 is taken into account.10
The provision also does not apply if the person is a battered woman or child.11

When is unlawful presence tolled?

A period of unlawful presence is tolled if:
the person was lawfully admitted or paroled to the United States,
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 the person has not been employed without authorization in the U.S. before or during the pendency of such application.12

This toll is available for up to 120 days.13 However, because of processing delays, INS and therefore the State Department have agreed that unlawful presence does not accrue pending a non-frivolous application for extension or change of nonimmigrant status as long as there has not been unauthorized employment, regardless of how long it takes.14 Unlawful presence also does not accrue pending a properly filed application for adjustment to permanent status if the person is not in removal proceedings.15

When does unlawful presence accrue?

A nonimmigrant is not lawfully present once an unauthorized period of stay expires but a violation of status does not result in unlawful presence.16 Unlawful presence would accrue if an immigration judge makes a determination of a violation of status in a deportation or removal hearing or if the Service makes such a determination during the course of adjudicating an application.17 Unlawful presence begins upon the date of the order of the immigration judge, whether or not appealed.18

Three-year, ten-year, and permanent bars

An unlawful presence bar is triggered upon the departure of a noncitizen from the U.S.19
Three-year bar: A noncitizen, other than a lawful permanent resident, is inadmissible if he:
owas unlawfully present in the United States for more than 180 days but less than one year;
ovoluntarily departed the United States (whether or not pursuant to INA § 244(e) 20) prior to the commencement of proceedings under INA § 235(b)(1) 21 or under INA § 240 22; and
oagain seeks admission within three years of the date of the noncitizen’s departure or removal.23
Ten-year bar: A noncitizen, other than a lawful permanent resident, is inadmissible if he:
ohas been unlawfully in the United States for one year or more; and
oagain seeks admission within 10 years of the date of his departure from the United States.24
Permanent bar: A noncitizen is permanently barred if he:
ohas been unlawfully present for an aggregate period of one year; or
ohas been ordered removed under INA § 235(b)(1) 25, under INA § 240 26, or any other provision of the law and subsequently enters or attempts to enter the United States without being admitted.27
10-year exception: The only exception to this bar is for a noncitizen seeking admission more than 10 years after the last departure from the U.S. who, prior to re-embarkation at a place outside of the United States or attempting to enter from a foreign contiguous territory, has been granted consent to reapply by the Attorney General.28
VAWA waiver: The only waiver available for this ground of inadmissibility is for a noncitizen who is a VAWA self-petitioner and who can demonstrate a connection between the battering or extreme cruelty and his departure or removal from the United States and subsequent reentry or reentries.29

  1. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  2. § 5:12 Grounds for exclusion—Aliens previously removed or unlawfully present, 1 Immigr. Law and Defense § 5:12
  3. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  4. v§ 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  5. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  6. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  7. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  8. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  9. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  10. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  11. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  12. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  13. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  14. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  15. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  16. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  17. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  18. § 11:37 Aliens unlawfully present, Steel on Immigration Law § 11:37 (2016 ed.)
  19. § 6:81 Unlawful presence bars, Immigration Trial Handbook § 6:81
  20. 8 U.S.C.A. § 1254a(e)
  21. 8 U.S.C.A. § 1225(b)(1)
  22. 8 U.S.C.A. § 1229a
  23. § 6:81 Unlawful presence bars, Immigration Trial Handbook § 6:81
  24. § 6:81 Unlawful presence bars, Immigration Trial Handbook § 6:81
  25. 8 U.S.C.A. § 1225(b)(1)
  26. 8 U.S.C.A. § 1229a
  27. § 6:81 Unlawful presence bars, Immigration Trial Handbook § 6:81
  28. § 6:81 Unlawful presence bars, Immigration Trial Handbook § 6:81
  29. § 6:81 Unlawful presence bars, Immigration Trial Handbook § 6:81

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