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 and DS-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). The Trump Administration is currently seeking to dramatically tighten the unlawful presence rules for students, so contact us for the latest information.
Applications timely filed to extend or change status automatically legalize 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.