(ARTICLE BY SERGE BOHEME, an attorney of the firm of Polatsek and Sclafani)
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So you want to Travel Outside the U.S.?
You may not be able to come back
(The issue of Unlawful Presence
In the context of the 3 and 10 Year Bars)
I have not seen my family outside the U.S. in a long time. I have an important business meeting outside the U.S. and I must attend. I have a sick relative/friend outside the U.S., who needs my help. When encountered with these situations, most of you will undoubtedly start making arrangements to travel outside the U.S. Who would not? An Immigration attorney should not tell you how to live your life, and I will not either. You are the best judge of what is most important in your life. However, if living in the United States for the next 3 to10 years is important to you, then there are certain issues that you should consider. Before you purchase the airline tickets, you may want to confer with an Immigration attorney about certain situations in which by departing the U.S. you will trigger laws which may disallow you to return to the United States for as much as 10 years.
Since April 1, 1997, aliens have been subject to laws that prevent them from coming back to the United States for 3/10 years, depending on the “unlawful presence” periods that they have had in the U.S. since 04/01/97. Section 212(a)(9)(B)(i)(I) of the INA, states that any alien unlawfully present in the U.S. for more than 180 days, but less than 1 year, that voluntarily departs from the U.S. will be inadmissible to the U.S. for a period of 3 years. Under Section 212(a)(9)(B)(i)(II) of the INA, aliens that have left or been removed from the United States after they were unlawfully present for a year or more will be inadmissible to the U.S. for a period of 10 years. These two subparts of Section 212(a)(9)(B) are commonly referred to as the 3 & 10-Year bar Statutes.
So what does this term “unlawful presence” mean anyway? Section 212(a)(9)(B) defines unlawful presence as presence in the U.S. without admission or parole, or presence in the U.S. after expiration of the period of stay authorized by the AG. When a determination is made that a certain period of your stay in the United States is “unlawful,” then everyday within that unlawful status is counted towards the concept of “unlawful presence.” If at any time the number of days unlawfully present in the United States reach the triggering amounts of 180 or 365 days, you are now under the “curse” of the 3/10 Year bar Statutes. The “curse” will not take effect until you leave the United States, but if triggered, its effects are that you may not come back to the U.S. for a long, long time.
How do you know when you have had “unlawfully present” periods in the U.S.? Certain situations are easy to determine. You do not have to worry about the 3/10-Year bar if you are in the U.S. as a Legal Permanent Resident, and your status as an LPR has never been terminated (although if you are a Conditional LPR you need to watch out for certain situations explained below). Likewise, if you are a non-immigrant who has at all times been in the United States within the time frames, and activity parameters allowed by the INS, then chances are that the 3/10-Year Bar statutes will not apply to you.
Aside from these clear examples, the Immigration and Nationality Act (INA) provides us with some degree of certainty with respect to certain statuses. Section 212(a)(9)(B)(iii) of the INA itself explains that the following periods of time will not be considered as periods of unlawful presence:
(1) While an alien is under 18 years of age;
(2) While an alien has a bona fide asylum claim pending (whether this claim is pending administratively or during Judicial review) as long as the person does not work without INS authorization;
(3) When an alien has valid family unity status; and
(4) Certain aliens who are battered spouses or children (so long are certain conditions are met).
Additionally, an immigrant alien may obtain a “forgiveness” for unlawful presence transgressions, in certain situations. This “forgiveness,” commonly described by the INS, and the Immigration and Nationality Act, as a waiver, can cure certain past misdeeds and allow you to come back to the United States. In the area of “unlawful presence” transgressions, Section 212(a)(9)(B)(V) of the INA states that the periods of inadmissibility may be forgiven if a refusal of admission to the immigrant alien would result in extreme hardship to his/her USC or LPR spouse or parent. Note that this waiver does not work if the denial of admission to the immigrant alien will result in extreme hardship to his/her USC or LPR child!). Furthermore, this waiver is available to immigrant aliens (coming for a “green card”), but not to non-immigrant aliens (coming for a temporary visa).
Since the enactment of this statute the Department of Justice (DOJ) has not promulgated regulations which clearly define which other statuses constitute unlawful presence and which do not. Only a handful of regulations relating to this issue have been promulgated. Among some of the notable regulations you may consider:
1) Title 8 of the Code of Federal Regulations (hereinafter CFR) Section 239.3, which states the following: “Effect of filing Notice to Appear: The filing of a Notice to appear shall have no effect in determining periods of unlawful presence as defined in Section 212(a)(9)(B) of the [INA]”.
2) Title 8 CFR Section 214.15(I)(3): Unlawful presence. -
(I) Nonimmigrant admission. An alien otherwise eligible for admission as a V nonimmigrant is not subject to the ground of inadmissibility under section 212(a)(9)(B) of the Act. This is true even if the alien had accrued more than 180 days of unlawful presence in the United States and is applying for admission as a nonimmigrant after travel abroad.
(ii) Permanent resident status. A V nonimmigrant alien is subject to the ground of inadmissibility under section 212(a)(9)(B) of the Act when applying for an immigrant visa or for adjustment of status to that of lawful permanent resident. Therefore, a departure from the U.S. at any time after having accrued more than 180 days of unlawful presence will render the alien inadmissible under that section for the purpose of adjustment of status or admission as an immigrant, unless he or she has obtained a waiver under section 212(a)(9)(B)(v) of the Act or falls within one of the exceptions in section 212(a)(9)(B)(iii) of the Act.
3) Title 8 CFR, Section 244 et seq.: The Preamble to this section explains that aliens granted Temporary Protected Status (TPS), and aliens granted Deferred Enforced Departure (DED) by the President do not accrue unlawful presence. Likewise, as of 11/16/98, aliens who file for TPS within 30 days of the expiration of their previous legal status will not accrue unlawful status. Finally, aliens eligible to apply late for TPS will not accrue unlawful presence from the end of the first period of TPS registration for their country.
Other than the situations delineated at these CFRs and the exceptions carved out by Section 212(a)(9)(B)(iii) of the INA, we have little statutory guidance on the issue of what constitutes unlawful presence. Likewise, there is no other binding authority that we can quote to determine with certainty how other statuses are dealt with. Notwithstanding, we can “guess” the position that the INS or the Department of State (DOS) may take in certain situations. This is because since 1997, the INS and the DOS have issued several memoranda, statements, cables, and Manuals’ (AFM & FAM) relating to the issue of unlawful presence.
I use the word “guess” literally because the INS and the DOS have not issued and/or enforced opinions and statements in a consistent manner in this area. Not only have these two agencies sometimes contradicted what the other Federal agency has previously stated, but also they have even contradicted prior pronouncements by the same agency. Neither agency can be expected to observe the views of the other agency. Furthermore, in the case of the INS, the Administrative Appeals Office has already stated that opinions issued by the INS General Counsel’s Office are not binding on the INS and the Adjudicators for the INS do not have to follow their opinions. Matter of Izumii. Int. Dec. 3360 (BIA 1988).
Now, if we were to assume arguendo that these two agencies will henceforth follow the latest announcements that I have read from each agency, we could say that the following statuses continue to accrue unlawful presence:
1) Aliens who first file to Adjust status after being served with a Notice to Appear (NTA) for removal proceedings (different from a person who renews an Adjustment of Status (A/S) application in Removal Proceedings after it was first denied by the INS). Memorandum from Paul Virtue, INS Acting Executive Associate Commissioner dated June 17, 1997 (reprinted in 74 Interpreter Releases 1046 (July 7, 1997));
2) Aliens in proceedings before an Immigration Judge or higher appellate authority do not stop accruing unlawful presence by virtue of being placed in proceedings (however the clock will stop on the date that relief is granted in the alien’s favor). Memorandum from Paul Virtue, INS Acting Executive Associate Commissioner dated 09/19/97 (Reprinted in 74 Interpreter Releases 1498 (09/29/97).
3) Aliens with a pending application for Cancellation of Removal or Withholding of removal. Memorandum from Paul Virtue, INS Acting Executive Associate Commissioner dated June 17, 1997 (reprinted in 74 Interpreter Releases 1046 (July 7, 1997));
4) Aliens appealing denials of Immigration Proceedings in Federal Court. Memorandum from Paul Virtue, INS Acting Executive Associate Commissioner dated June 17, 1997 (reprinted in 74 Interpreter Releases 1046 (July 7, 1997));
5) Conditional residents who fail to file a timely petition to remove the conditional status (as is required by Sections 216 and 216A of the INA). DOS Cable 98-State 060539 dated 04/04/98 (reprinted in 75 Interpreter Releases 543 (April 20, 1998)). In these situations “the conditional resident’s status is automatically terminated,” and unlawful presence begins to accrue as of the date on which the conditional status expired. In the case of an alien who files a late petition for good cause, the INS can approve the petition retroactively, and in these cases no unlawful presence accrues. On the other hand, if the INS serves an alien with a Notice of Intent to revoke the conditional LPR status during the two-year conditional period, “the alien continues to enjoy all the rights and privileges of an LPR until LPR status is terminated.”
6) Entrants Without Inspection (EWIs): If you entered the U.S. illegally (EWI), you will begin to accrue unlawful presence immediately (or on 4/1/97 if your illegal entry occurred before 4/1/97), unless and until the INS or an Immigration Judge grant you a different status.
Conversely, we could infer that the following statuses do not to accrue unlawful presence:
1) Applicants who properly file affirmative applications to Adjust Status under INA 245 (including under Section 245(I)). This also applies to a renewal of a denied adjustment of status application in removal proceedings; Chapter 30.1(d)(3) of the Adjudicators Field Manual (AFM); Memo from Michael Pearson, Executive Associate Commissioner dated from 03/03/00 (reproduced at Appendix I of 77 Interpreter Releases 318 (03/13/00);
2) A period of Voluntary Departure whether granted by the INS, the Immigration court or the BIA. Id. However, AFM Chapter 30.1(d)(6) clarifies that “any unlawful presence that accrued before the date the voluntary departure was actually granted is not eliminated. And if the alien does not make a timely departure, the counting of unlawful presence resumes.
It is important to understand that if the alien has been unlawfully present in the U.S. for a period of more than 365 days before he/she was granted Voluntary Departure, then Section 212(a)(9)(B)(i)(II) will come into effect. This means that the alien may not be allowed to return to the U.S. for 10 years even though the alien has departed the U.S. according to the Voluntary Departure grant of an Immigration Judge. On the other hand if the alien does not depart pursuant to the Immigration Judge’s order, then the Voluntary Departure grant will turn into an order of Deportation/Removal. “Moreover the alien then becomes subject to civil penalties and is ineligible for any further voluntary departure or other forms of relief, such as adjustment of status, registry and cancellation of removal.” AFM Chapter 30.1(d)(6). An alien in this predicament should consider the fact that from a legal standpoint he/she will be in a worst position if he/she disobeys the Voluntary Departure grant/order. However, before the alien departs the U.S. pursuant to the Voluntary Departure order, which should occur before the Voluntary Departure date has come and gone, the alien should first consult with an Immigration Attorney regarding the options at his/her hand, if any.
3) Applicants for Adjustment of Status under HRIFA, and under section 202(b) NACARA; Registry Applicants. Chapter 30.1(d)(1) of the AFM; Memo from Michael Pearson, Executive Associate Commissioner dated from March 3, 2000 (reproduced at Appendix I of 77 Interpreter Releases 317 (03/13/00);
4) Cuban and Haitian entrants who apply for temporary and permanent residence under Section 202 (b) of Pub. L. 99-603 through administrative appeal. AFM Chapter 30.1(d)(3); Memo from Michael Pearson, Executive Associate Commissioner dated 03/03/00 (reproduced at Appendix I of 77 Interpreter Releases 318 (03/13/00);
5) Aliens granted Asylee or refugee status AFM Chapter 30.1(d)(3); Memo from Michael Pearson, Executive Associate Commissioner dated 03/03/00;
6) Aliens granted withholding or deferral of removal under the UN’s Convention Against Torture (CAT); aliens granted withholding or suspension of deportation, or cancellation of removal; Id. As for aliens who have not yet been granted Withholding of Removal or Cancellation of Removal but they have an application pending before an Immigration Judge, you should consult with your Immigration attorney on the issue whether you can travel or not. Depending on your circumstances, chances are that you are incurring unlawful presence during the period in which the application is pending. The fact that you have filed an application for Cancellation of Removal and/or Withholding of Removal in and of itself will not stop the clock if it is already running. Relating to this issue, you may want to refer to the article written by Beth Stickney “Whither Family Unity? A Post-IIRIRA Update” appearing on Immigration Briefings No. 98-12 (December 1998)).
7) Legalization and special agricultural worker applications for lawful temporary residence which are pending through an administrative appeal. AFM Chapter 30.1(d)(3).
Non-immigrants admitted until a specific date: these aliens begin to accrue unlawful presence on the date the period of admission authorized by the INS expires as noted on the arrival document (usually I-94) issued at the Point of Entry (POE). Chapter 30.1(d)(2) of the AFM; Memo from Michael Pearson, Executive Associate Commissioner dated 03/03/00;
9) Non-immigrants admitted Duration of Status (D/S): these aliens do not begin to accrue unlawful presence unless and until: 1) the Service finds a status violation (such as working without permission or committing a deportable crime) while adjudicating a request for another Immigration benefit, or 2) on the date an Immigration Judge finds a status violation during proceedings. However, if the immigration judge concurrently issues voluntary departure and the alien complies with the order, no unlawful presence accrues. Id;
10) An alien that applies, before the previously authorized stay expired, for a change of status (C/S) or for an extension of stay (E/S) does not accrue unlawful presence during the entire period the application is pending. AFM Chapter 30.1(d)(4) and Section 212(a)(9)(B)(iv) combined. However, the alien must not have worked without authorization before the application for C/S or E/S was filed or while it was pending, and the alien must have been lawfully admitted or paroled into the U.S.
Taken from a historical context, the first 120 days of unlawful presence have not been counted for purposes of the 3-Year Bar in the case of aliens who timely filed a non-frivolous application to C/S or E/S since Section 212(a)(9)(B) was enacted. Then Chapter 30.1(d)(4) of the AFM was issued to supplement Section 212(a)(9)(B) of the INA, by making the time after the 120 days lawful.
In these cases, if the application to C/S or E/S is approved no unlawful presence accrues. If the application to C/S or E/S is denied because it was filed untimely, or the alien worked illegally, or because it was a frivolous application, the unlawful presence begins to accrue as soon as the time in the I-94 expires. If the application to C/S or E/S is denied in the case of aliens admitted D/S unlawful presence begins to accrue on the date of the INS’ decision. AFM Chapter 30.1(d)(5); Memo from Michael Pearson, Executive Associate Commissioner dated from 03/03/00 (reproduced at Appendix I of 77 Interpreter Releases 319 (03/13/00)).
If the INS (or an Immigration Judge) makes a finding that any nonimmigrant alien has violated his/her nonimmigrant status, then unlawful presence will begin to accrue as of the date of the decision regardless of whether the alien decides to appeal the decision or not. Memo from Paul Virtue, INS Acting Executive Associate Commissioner 09/19/97 (reprinted in 74 Interpreter Releases 1498 (09/29/97)).
A good example of this rule in action can be seen in a scenario described by Immigration attorney Ira Bumkemper where she explains what commonly occurs with many H-1B non-immigrant aliens:
“During the adjudication of a petition to amend and extend nonimmigrant stay filed after corporate restructuring, unlawful presence will begin to accrue as of the date of the decision denying the immigration benefit, not retroactively to the date that the alleged status violation occurred [for example the date a material change in the terms of employment -such as corporate reorganization- occurred]. Although individuals found to be unlawfully present by an INS determination may appeal this decision, this action will not toll the accrual of unlawful presence.” “The Impact of the IIRIRA’S unlawful presence and overstay provisions on temporary workers.” 76 Interpreter Releases 1754 (12/13/99).
For purposes of section 212(a)(9)(B) of the INA, periods of unlawful presence accrued on separate trips cannot be added together. 9 FAM Note 2(b) to 22 CFR 40.92 (08/31/01). Nonetheless, separate periods of unlawful presence that occur during the same overall period of stay (i.e. interrupted by a period that has been held not to involve unlawful presence, such as TPS or voluntary departure) may be aggregated to reach the 180 or 365-day plateaus. Id.
The Administrative Appeals Office has already stated that opinions issued by the General Counsel’s Office are not binding on the INS. Similarly we should not necessarily feel bound by the various forms of opinions, statements, memoranda, etc., emanated by the DOS and the INS. If you are an alien who is/has been in Removal/Deportation proceedings, you should know that numerous immigration advocates have mentioned that in their opinion the interpretations given by the DOS and the INS go against the Congressional intent behind Section 212(a)(9)(B). The general consensus among these advocates is that Section 212(a)(9)(B) was enacted to punish people who overstay their authorized stay and then depart without ever having been involved in Removal or Deportation Proceedings. The belief is that Congress was interested in finding a way of punishing aliens who stayed illegally, yet they were not punished for this transgression by being placed in proceedings.
Congress has already addressed the way in which the U.S. will deal with aliens who are placed in Deportation/Removal Proceedings by enacting statutes that prevent deported/removed aliens from coming back for 5/10 years unless the AG first allows them to come back. Arguably Congress did not intend to apply the 3/10-year bar to an alien that has already been punished by other statutes which prevent deported/removed aliens from coming back for 5/10+ years after the date of the order of deportation/removal.
Unfortunately, the only way to overcome the INS and DOS’ interpretations of the applicability of the 3/10 Year Bar to your case may be to litigate these matters first at the BIA level, and ultimately in the federal court system. Even if you were to have the time, money and patience to endure a case that may face many pitfalls, you will also have to overcome various difficult issues, (including standing, ripeness, exhaustion of administrative remedies, etc.). You may find it interesting to read the article written by Bernard Schwarz. “Unlawful presence unlawfully interpreted” 79 Interpreter Releases 509 (April 8, 2002). This article gives a sound and comprehensive analysis on the issue of Voluntary Departure vis-à-vis the 10-Year Bar. “Should the principal cornerstone of relief from deportation (now removal), relief that should prevent a 10-year bar upon removal, be so frivolously jettisoned with the stroke of an INS pen?”
Parenthetically, I will add that while you analyze the issue of admissibility once an alien departs the US you must also bear in mind the applicability of Section 222(g) of the INA. 222(g) states that if an alien remained beyond the period authorized by the AG, his nonimmigrant visa becomes automatically void at the conclusion of the authorized stay (unless he timely filed to C/S or E/S). The alien may not then be admitted to the U.S. unless he/she first obtains a visa in the country of his/her nationality. You may get a new visa in a third country only if the DOS finds “extraordinary circumstances.”
This writing should not be construed to be legal advice. Furthermore, nothing in this writing should be construed as an invitation to disobey any order by the INS or an Immigration Judge. Far from it, this article should be used merely as a guide to determine when it would be a particularly good idea to consult with an attorney before traveling away from the United States. When in doubt about your immigration status, and whether your departure will trigger the 3/10-Year Bars you should consult with an attorney. The list of statuses in this writing is by no means exhaustive, and you should not analogize your situation to a status described herein just because it is similar. Likewise, there is no guarantee that either the INS or the DOS are currently following the situations as described in this writing.