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212(a)(9)(B) Unlawful Presence

Unlawful presence is the most frequently cited reason for inadmissibility to the United States, with more than 30,000 such decisions every year. The rules for unlawful presence are relatively simple: 1) if a person is unlawfully present in the United States for more than 180 but less than 365 days and leaves the United States, he will be subject to a 3 year bar from the US; and 2) if a person is unlawfully present in the United States for more than one year and leaves the United States, he will be subject to a 10 year bar from the US. The visa of a person who is even one day unlawfully present is automatically invalidated under Section 222(g) of the Immigration and Nationality Act.

While these rules are not complicated, a source of confusion is what triggers the start of the clock for unlawful presence. Unlawful presence commences when a person enters the United States without inspection; when a person’s existing authorized status has expired; or a negative decision by the US government has been made terminating the status of the individual. Individuals in B or an employment status such as H or L have their authorized stays determined by the dates on their I-94 cards. F-1 students and J-1holders, on the other hand, have their stays determined by the dates on their I-20 andDS-2019 forms, respectively. So if a student stops going to classes, he falls out of status, but he does not become unlawfully present until the date on his I-20 expires or the government enters a decision against him (e.g., an immigration judge decides to remove him for violating his student status).

Applications timely filed to extend or change status automatically legalizes a person’s stay until a decision is made; even applications which are untimely filed can in some cases be forgiven. However, once a negative decision is made, an appeal or a motion to reopen or reconsider does not legalize the individual’s stay — unless the decision is overturned. So if a company’s petition to extend the L status of an employee is denied, the employee must leave the United States immediately; otherwise, he will accumulate unlawful presence. The company can file an appeal, but an appeal can take 8–9 months to adjudicate.

Another important point to remember about unlawful presence is that if a person has an advance parole document because he has a pending adjustment of status application, a departure might not trigger the unlawful presence bar. Under the Arrabally case, a brief departure from the US by such individuals is not considered a departure for purposes of triggering the unlawful presence bar.

Individuals with pending asylum applications or appeals are not subject to these unlawful presence rules as long as their application is not frivolous.

As you can see, these idiosyncratic rules on how to count accumulated unlawful presence can be confusing and can often lead to consular officers making mistakes in counting days of unlawful presence. If the consular officer is correct, nonimmigrant and immigrant waivers are usually available.

Please contact us to discuss your situation.

Case Studies

In a highly unusual case, Mr. A. was a recently-landed immigrant from Uzbekistan who found out that he had won the Lottery. Because his 21 year old son was stranded in his home country but was included in his Lottery entry, Mr. A. decided to obtain another green card so that his son would be eligible to immigrate as well. The problem arose, first, when he was advised by the Kentucky Consular Center that his son was no longer allowed to immigrate as his dependent because he had turned 21. Later the consulate advised Mr. A. that he was not able to obtain another green card, that he had to petition for his son separately, a process which could take several years. Mr. A. then contacted our firm, and we were able to successfully petition for review of both of these decisions, with the end result that Mr. A. received another green card and his son was allowed to immigrate.

Case of Y.A.