Unlawful Presence Bars: Three-Year, Ten-Year, and Permanent

Question:

I have a question about unlawful presence. I am a Mexican citizen. I entered the United States without inspection in 2014 and stayed for about 8 months. I returned to Mexico for a brief period of time and then returned to the United States without inspection in January of 2015 and have remained since that entry.

Answer:

Thank you for your question. Due to your uncertainty about the amount of time you spent unlawfully in the United States, I would strongly encourage you to contact the office so we can develop a precise timeline of your entries and departures. As you will see, different amounts of unlawful presence trigger different penalties. Below, please find a general overview of unlawful presence.

Unlawful Presence

A person is unlawfully present in the United States if he or she is present: (1) after the expiration of the period of stay authorized by the Secretary of Homeland Security; or (2) without being admitted or paroled.

Three-Year Bar

Pursuant to INA § 212(a)(9)(B)(i)(I), a person 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…prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien’s departure or removal…is inadmissible.”

Three-Year Bar Example: Maria begins to accrue unlawful presence on January 1, 2010. On May 21, 2010 (140 days after January 1, 2010), Maria files for an adjustment of status application. Maria does not accrue unlawful presence during the pendency of her application. The application is denied on January 5, 2011 (final administrative decision).  After the denial, Maria continues to remain in the United States unlawfully and begins to accrue unlawful presence starting on January 6, 2011 (a day after the application was denied). Maria finally departs the United States on March 17, 2011, which is an accrual of 70 days of unlawful presence. The total period of unlawful presence accrued by Maria from January 1, 2010 to March 17, 2011 is 210 days. By departing the United States, Maria triggered the three-year bar and is now inadmissible under INA § 212(a)(9)(B)(i)(I).

Ten-Year Bar

Pursuant to INA § 212(a)(9)(B)(i)(II), a person who “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 Untied States, is inadmissible.”

Permanent Bar

Pursuant to INA § 212(a)(9)(C)(i)(I), a person who “has been unlawfully present in the United States for an aggregate period of more than 1 year…and who enters or attempts to reenter the United States without being admitted is inadmissible.” Therefore, a person is subject to the permanent bar, if he or she accrues a total of more than one year of unlawful presence, whether accrued during a single or multiple stay, departs the United States, and subsequently reenters or attempts to reenter without admission.

Permanent Bar Example: Albert enters the United States unlawfully on January 1, 2010 and then leaves on June 1, 2010. Albert has accrued 151 days of unlawful presence at during this stay. Albert reenters the United States unlawfully on January 1, 2011 and stays until November 1, 2011. Albert again accrues 304 days of unlawful presence. While neither period of stay is greater than one year, the aggregate period of unlawful presence, however, exceeds one year (455 days). If Albert attempts to return to the United States without being admitted, Albert will be inadmissible under INA § 212(a)(9)(C)(i)(I).

In light of the severe penalties associated with unlawful presence, I would strongly encourage you to contact our office to discuss your short and long-term immigration goals.