Grounds for Removal: Unlawful Presence Text Size:

"Unlawful presence" by an alien in the United States for specified periods can result in inadmissibility. An alien is any person who is not a citizen or national of the United States. If an alien if found to be inadmissible, the alien is subject to removal.

3/10 Year Bar

Two provisions of Immigration and Nationality Act (INA) § 212(a)(9)(B)(i)(I) and (II), 8 U.S.C. § 1182(a)(9)(B)(i)(I) and (II), deal with aliens who are unlawfully present in the United States. The provisions state that:

• An alien (except a legal permanent resident) unlawfully present for more than 180 days but less than one year, who left the United States voluntarily before proceedings began, is ineligible for admission or reentry for three years from the date of departure. An alien who leaves voluntarily during proceedings is not covered.
• An alien unlawfully present for one year or more, and who leaves or is removed from the United States, is inadmissible for ten years from the date of departure.

In both cases, the bar does not begin to run until the alien's departure. Hence, the remedy of adjustment of status in the United States becomes important. Although aliens unlawfully present for 180 days would ordinarily be barred from adjustment under INA § 245(c), 8 U.S.C. § 1255(c), some may still be able to overcome this bar by filing under INA § 245(i), 8 U.S.C. § 1255(i).

There is also a permanent bar to admission for aliens who were unlawfully present for an aggregate of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted.

Exceptions

There are exceptions to both the three- and the ten-year bars for minors, lawful permanent residents, and asylees. For minors, no time in which an alien is under 18 is taken into account in determining unlawful presence. Similarly, aliens who have filed bona fide asylum applications do not have to worry about being unlawfully present in the United States while their applications are pending, unless they work without authorization.

Alien beneficiaries of family unity protection and battered women and children are also excepted, as are victims of severe trafficking in persons.

In addition to these statutory exceptions, the government has stated that it considers the following categories of aliens to be lawfully present:

• Refugees under INA § 207, 8. U.S.C. § 1157
• Asylees under INA § 208, 8 U.S.C. § 1158
• Aliens granted withholding of deportation/removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)
• Aliens granted cancellation of removal pending adjustment
• Aliens under a current grant of deferred enforced departure
• Aliens under a current grant of temporary protected status
• Certain Cubans, Haitians, and Nicaraguans and
• Aliens with properly filed applications for adjustment of status under INA § 245, 8 U.S.C. § 1255

Waivers

The three- and ten-year bars can be waived for the spouse, son, or daughter of a U.S. citizen or legal permanent resident (LPR) if extreme hardship would result to the qualifying citizen or LPR.

In addition to these waivers, certain aliens may be eligible for a broader exercise of discretion. For example, inadmissibility can be waived for humanitarian reasons, to assure family unity, or when it is otherwise in the public interest.

Questions for Your Attorney

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