Immigration Law Wiki
Unlawful Presence
UNLAWFUL PRESENCE
Among the most common barriers to “legal” immigration status for those in the US are the “three- and ten-year bars,” provisions of the law which prohibit applicants from returning to the United States if they depart after having previously been in the country illegally. Many people who qualify for green cards based on their relationships to U.S. citizen or lawful permanent resident relatives are caught in a Catch-22—under current law they must leave the United States to apply for their green card abroad, but as soon as they depart, they are immediately barred from re-entering the country for a period of time. In other words, because of the punitive effect of our immigration laws, immigrants who have a chance to legalize their status may not be able to do so. Instead, they must choose between leaving the United States and taking the risk they might not be able to return, or remaining in the country without legal status.
The Secretary of Homeland Security may waive the three- and ten-year bars to admission in certain circumstances. Recent regulatory changes have broadened the number of people eligible for a process that allows them to apply for advance approval of the waiver in the United States, rather than enduring a lengthy separation from their loved ones while they apply abroad. Effective August 29, 2016, the U.S. Department of Homeland Security (DHS) published a final rule that expands eligibility for the “provisional unlawful presence waiver.”
THREE AND TEN-YEAR BAR
The three- and ten-year bars were created as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996. Incorporated into section 212(a)(9)(B) of the Immigration and Nationality Act (INA), the statute imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully. “Unlawful presence” is a term of art that is not defined in the statute or regulations. However, the U.S. Citizen and Immigration Services (USCIS) Adjudicator’s Field Manual includes guidance on determining when a noncitizen accrues unlawful presence. Generally, an immigrant who enters the United States without inspection, or who overstays a period of authorized admission, will be deemed to have accrued unlawful presence. Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the United States for three years; those who accrue more than one year of unlawful presence are barred for ten years.
Statutory Grounds for Unlawful Presence
INA § 212(a)(9)(B)(i) & INA §212(a)(9)(B)(ii) (8 USC 1182)
Any foreign national who was unlawfully present in the US for more than 180 days is inadmissible for three years and if unlawfully present for one year, is inadmissible for ten years.
Any alien (other than an alien lawfully admitted for permanent residence) who was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States and again seeks admission within 3 years of the date of such alien’s departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States is inadmissible.
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 in the United States.
No period of time in which an alien has a bona fide application for asylum pending shall be taken into account in determining the period of unlawful presence in the United States unless the alien during such period was employed without authorization in the United States.
No period of time in which the alien is a beneficiary of family unity protection shall be taken into account in determining the period of unlawful presence in the United States.
This section shall not apply to VAWA petitioners. This section shall not apply to an alien who demonstrates that the severe form of trafficking was at least one central reason for the alien’s unlawful presence in the United States.
8 USC § 1182
(B) Aliens unlawfully present
(i) In general Any alien (other than an alien lawfully admitted for permanent residence) who-
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) 3 of this title) prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien’s departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States,
is inadmissible.
(ii) Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.
**(iii) Exceptions
(I) Minors** 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 in the United States under clause (i).
(II) Asylees No period of time in which an alien has a bona fide application for asylum pending under section 1158 of this title shall be taken into account in determining the period of unlawful presence
in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.
(III) Family unity No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the
period of unlawful presence in the United States under clause (i).
(IV) Battered women and children Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if “violation of the terms of the alien’s nonimmigrant visa” were substituted for
“unlawful entry into the United States” in subclause (III) of that paragraph.
(V) Victims of a severe form of trafficking in persons Clause (i) shall not apply to an alien who demonstrates that the severe form of trafficking (as that term is defined in section 7102 of title 22) was
at least one central reason for the alien’s unlawful presence in the United States.
(iv) Tolling for good cause In the case of an alien who-
(I) has been lawfully admitted or paroled into the United States,
(II) 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
(III) has not been employed without authorization in the United States before or during the
pendency of such application,
the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.
WAIVER
A waiver is available for unlawful presence. See I-601 Waiver and I-601A Waiver.
