In immigration law, there is a concept referred to as “unlawful presence.” By accruing certain amounts of unlawful presence in conjunction with other actions, an alien may find him or herself subject to one of the inadmissibility bars.
What is Unlawful Presence?
In immigration law, there is a concept referred to as "unlawful presence." By accruing certain amounts of unlawful presence in conjunction with other actions, an alien may find him or herself subject to one of the inadmissibility bars. The Immigration and Nationality Act (INA) provides for a 3-year bar of inadmissibility, a 10-year bar of inadmissibility, and what is generally referred to as a permanent bar of inadmissibility. In this article, we will example how unlawful presence is accrued, the 3- and 10-year unlawful presence bars, and waivers from the unlawful presence ground of inadmissibility to the United States.
When Does an Alien Accrue Unlawful Presence?
Under INA 212(a)(9)(B)(ii), in general, an alien will begin accumulating days of unlawful presence if he or she is present in the United States after:
- The Expiration of the period of stay authorized by the Attorney General; or
- Entry into the United States without having been admitted or paroled.
With regard to the first point, it is important to distinguish the concept of being "out of status" from accruing "unlawful presence." For example, take the case of an alien who is on H1B status, but then ceases working for his or her H1B employer. If the alien remains in the United States without a change of status, he or she will technically be considered to be out-of-status. However, following USCIS rules found in AFM 40.9.2(a)(2), the alien would generally not be considered to begin accruing unlawful presence until he or she is present in the United States after the expiration date on his or her Form I-94. The exception to this rule is if the alien applies for a benefit from the USCIS, and the USCIS finds in adjudicating the benefit request that the alien violated his or her status. In such a case, unlawful presence would begin to count from the date the USCIS denies the benefit request (unless the denial was subsequent to the expiration date on the Form I-94).
Persons who are admitted for duration of status, rather than until a specific date, will begin accruing unlawful presence from the date that the USCIS denies an immigration benefit request or from the date that an immigration judge makes a formal finding of a status violation in immigration proceedings.
With regard to the second point, unless the alien falls within certain exceptions (see section 3), entry without inspection will lead to the accrual of unlawful presence from the moment the alien is present in the United States.
Exceptions from the Accrual of Unlawful Presence
There are several exceptions in INA 212(a)(9)(B)(iii) under which time does not count toward the unlawful presence bars. These exceptions are as follows:
- Time spent in the United States under the age of 18;
- Time spent in the United States with a bona fide application for asylum under section 208 pending (however, unauthorized employment would start the unlawful presence clock);
- Time spent in the United States as the beneficiary of family unity protection under section 301 of the Immigration Act of 1990 (however, time spent before being granted family unity protection will count as unlawful presence);
- Time spent by an alien who is a VAWA self-petitioner, who has been subjected to battery or extreme cruelty by a spouse, parent, or member of the spouse or parent's family, or if the spouse or parent acquiesced or consented to such cruelty (or if the alien's child was subjected to battery or extreme cruelty by a spouse or a member of the spouse's family and the alien did not actively participate) provided that the alien establishes that the victimization was a central reason for the violation of the terms of the alien's immigration status; and
- Time spent by an alien who establishes that he or she is a victim of a severe form of trafficking in persons provided that the alien establishes that his or her victimization was at least one central reason for the unlawful presence.
In these situations, an alien should consult with an experienced immigration attorney for guidance on whether he or she may be subject to the unlawful presence bars.
Tolling for Good Cause
Under INA 212(a)(9)(B)(iv), an alien who was lawfully admitted into the United States as a nonimmigrant and who files an application for change of status or for extension of status before the expiration of his or her period of stay authorized by the Attorney General shall be protected from accruing unlawful presence for up to 120 days while the application is pending. However, engaging in unauthorized employment will begin the clock on unlawful presence.
Unlawful Presence Bars
Under INA 212(a)(9)(B)(i)(I), an alien accrues at least 180 days of unlawful presence, and then departs the United States, he or she may be subject to one of the inadmissibility bars for unlawful presence.
An alien who is unlawfully present for more than 180 days but less than one year will be subject to the 3-year bar of inadmissibility if he or she voluntarily departed the United States prior to being placed in removal proceedings. It is important to note that the alien must voluntarily depart before the conclusion of removal proceedings (or before being placed in such proceedings) in order to be subject to only the 3-year bar of inadmissibility.
Under INA 212(a)(9)(B)(i)(II), if an alien is unlawfully present in the United States for one year or more, he or she will be subject to the 10-year bar of inadmissibility after departure. Unlike the 3-year bar, the manner of departure is irrelevant to triggering the 10-year bar of inadmissibility.
Unlawful presence must be continuous in order to count toward the bars. For example, if a person accrues 175 days of unlawful presence, departs, and then on a subsequent stay accrues six days of unlawful presence before voluntarily departing, he or she would not be subject to the 3-year bar of inadmissibility. Although it is not the focus of this article, it is worth noting that the more stringent "permanent bar" of inadmissibility works in a slightly different manner. For the permanent bar, unlawful presence is counted in the aggregate. If an alien accrued more than one year of unlawful presence over any number of stays, was ordered removed, and subsequently endeavored to reenter without inspection, the alien would be subject to the permanent bar of inadmissibility.
Unlawful presence time continues to accumulate even after an alien is placed in removal proceedings.
Waivers of Unlawful Presence Bars
A person who is subject to the 3- or 10-year bar of inadmissibility may procure a waiver of inadmissibility by filing a Form I-601 establishing both of the following:
- That he or she is the spouse, son, or daughter of a U.S. citizen or LPR; and
- That the refusal of his or her admission would result in extreme hardship to his or her U.S. citizen or LPR spouse or parent(s).
It is important to note that a U.S. citizen/LPR child is not a qualifying relative for purpose of seeking a waiver of the 3- or 10-year unlawful presence bar.
If a person is in the United States and would be required to leave to obtain an immigrant visa through consular processing, he or she may apply for a provisional unlawful presence waiver by using the Form I-601A. For provisional unlawful presence waivers, the USCIS will adjudicate the waiver request before the person departs for consular processing. If the person is ultimately granted a visa through consular processing, the provisional waiver will take effect in full.
Applicants for asylee or refugee status may seek a waiver by filing the Form I-602.
An applicant for temporary protected status may apply for a waiver to enter the United States. Such a waiver may be granted for humanitarian purposes, for family unity, or if the granting of such a waiver is deemed to be in the public interest. However, because a waiver to enter the United States on TPS does not require the establishment of extreme hardship, the alien would have to apply specifically for an unlawful presence waiver in order to seek adjustment of status.
A person who is unsure about his or her immigration situation with regard to unlawful presence should consult with an experienced immigration attorney. Simply knowing the rules may, in many cases, prevent a person from accruing enough unlawful presence to trigger the 3- or 10-year bar. If an alien is subject to the 3- or 10-year bars, or would be upon departure, he or she should consult immediately with an experienced immigration attorney for a full evaluation.
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