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Unlawful Presence Before You Turn 18 Years Old

Posted by attorney Khaja Din

If you remain in the US unlawfully before you turned 18 and even for 179 days after you turned 18 the bars on your reentry to the U.S. do not apply per INS § 212 (a)(9)(B)(iii): AFM at 40.9.2(b)(2). We had a client who married a US Citizen. She was originally from Poland and she was brought to the U.S. by her parents as a young child from Canada in the back of a truck. She and her parents did not have a visa to the U.S. and they were not inspected at the border but were smuggled into the US. Though this is rare is not seen often, our client was within this perfect window where she had just turned eighteen years old and had not tripped past 180 days after her eighteenth birthday. The mandatory bars on her reentry to the U.S. did not apply to her. The regulation quoted above clearly expressly concludes that for Minors – No time period while under 18 is taken into account and when you read my other legal guide titled “ Consequences of Unlawful Stay/Overstay In The U.S. the 3yr, 10yr & perm bar" it is clear that the bar is not triggered until the person stays for more than 180 days. The client departed for Poland before the 180 days would have triggered the bar on reentry and the visa is granted without the need for a waiver.

If you have any questions, please contact the author directly at kdin@dinmemmen.com or at (312) 361-8462. This is not meant to be a how-to but rather a primer on specific legal issues written for other legal practitioners.

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