Unlawful Presence INA 212(a)(9)(B) – 3 and 10 year bars

Unlawful presence is the most frequently cited reason for inadmissibility to the United States. 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, that person 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, that person 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.

Inadmissible Aliens and Expedited Removal ( INA 235.3)

(b) Expedited removal –

(1) Applicability. The expedited removal provisions shall apply to the following classes of aliens who are determined to be inadmissible under section 212(a)(6)(C) or (7) of the Act:

(i) Arriving aliens, as defined in 8 CFR 1.2;

(ii) As specifically designated by the Commissioner, aliens who arrive in, attempt to enter, or have entered the United States without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, and who have not established to the satisfaction of the immigration officer that they have been physically present in the United States continuously for the 2-year period immediately prior to the date of determination of inadmissibility. The Commissioner shall have the sole discretion to apply the provisions of section 235(b)(1) of the Act, at any time, to any class of aliens described in this section. The Commissioner’s designation shall become effective upon publication of a notice in the Federal Register. However, if the Commissioner determines, in the exercise of discretion, that the delay caused by publication would adversely affect the interests of the United States or the effective enforcement of the immigration laws, the Commissioner’s designation shall become effective immediately upon issuance, and shall be published in the Federal Register as soon as practicable thereafter. When these provisions are in effect for aliens who enter without inspection, the burden of proof rests with the alien to affirmatively show that he or she has the required continuous physical presence in the United States. Any absence from the United States shall serve to break the period of continuous physical presence. An alien who was not inspected and admitted or paroled into the United States but who establishes that he or she has been continuously physically present in the United States for the 2-year period immediately prior to the date of determination of inadmissibility shall be detained in accordance with section 235(b)(2) of the Act for a proceeding under section 240 of the Act.

The Permanent Unlawful Presence Bar ( INA 212(a)(9)(C)(i)(I))

If you are an alien and you are not a lawful permanent resident of the United States, you may be inadmissible forever under INA 212(a)(9)(C)(i)(I) if:

  • You accrued an aggregate period of more than one year of unlawful presence in the United States on or after April 1, 1997, and then departed the United States or were removed from the United States; and
  • You entered or attempted to reenter the United States on or after April 1, 1997, without a DHS officer admitting or paroling you into the United States.

“Aggregate period” means the total number of days of unlawful presence that you accumulated during all of your stays in the United States combined.

If the permanent unlawful presence bar applies to you, you will be permanently ineligible to:

  • Receive an immigrant or a nonimmigrant visa to come to the United States;
  • Adjust your status in the United States to that of a lawful permanent resident (Green Card holder); or
  • Be admitted to the United States at a port of entry.

Although you are permanently inadmissible under this ground, you may ask for permission to reapply for admission to the United States, but only if you have been physically outside the United States for at least 10 years since the date of your last departure. This permission is called “consent to reapply for admission” to the United States. If your application for consent to reapply for admission is denied, then you remain inadmissible on this ground. Additional information about consent to reapply is available on the Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal page.

There may be other ways to overcome this bar, depending on the immigration benefit that you are applying for. See the next section below entitled, If An Unlawful Presence Bar Applies To You, for more information.

Technically, the consequence of repeated deportations can also results in a bar for 20 years and then a lifetime ineligibility to legalize in the U.S.