inside
OCTOBER 2010
IMMIGRATION
VOL. 1 ISSUE 2
Determining Unlawful Presence for the Purposes
of the Three-Year, Ten-Year, and Permanent Bars
by Lee A. O’Connor
The grounds of inadmissibility based on unlawful presence set out in sections 212(a)(9)(B) and (C) of the Immigration and Nationality Act (INA)1
are among the most draconian provisions in immigration law today. This article will focus on what constitutes unlawful presence for purposes of the
three-year, ten-year, and permanent bars. It will not focus on other elements
of these grounds of inadmissibility, the consequences of triggering the bars, or
waivers of inadmissibility.2
A foreign national is inadmissible for three years (the three-year bar) if he or
she: (1) departed the United States; (2) prior to the commencement of removal
proceedings; (3) after having been unlawfully present in the United States for
more than 180 days and less than one year.3 A foreign national is inadmissible
for ten years (the ten-year bar) if he or she: (1) departed the United States; (2)
after having been unlawfully present in the United States for one year or more.4
A foreign national is inadmissible for life (the permanent bar) for: (1) departing
the United States after having been unlawfully present for more than one year
in the aggregate, and then entering or attempting to enter “without being admitted”; or (2) departing the United States after having been ordered removed,
and then entering or attempting to enter “without being admitted.”5
The Definition of Unlawful Presence
The INA states that a foreign national is unlawfully present in the United
States if he or she: (1) remains in the United States after the expiration of
the period of stay in the country granted by the attorney general (AG); (2)
“or is present in the United States without being admitted or paroled.”6
Consequently, a foreign national accumulates unlawful presence for remaining in the United States after the expiration of a period of stay authorized by the
attorney general (POSABAG), or for entering without inspection.
Authorized Stay Distinguished from “Status”
It is important to note that a period of authorized stay is granted to a for-
Lee A. O’Connor has been
the directing attorney of the
Immigrants’ Rights Center
at Indiana Legal Services
since 1999. Previously, he
supervised the immigration
units at legal services organizations in San Diego and
Los Angeles. He received his
J.D. from Loyola Law School
in Los Angeles and his B.A.
in Political Science from
the University of California,
Berkeley. Lee is chair of the
Indiana AILA chapter and
previously served as its
vice chair and treasurer.
He is the 2010 recipient of
the American Immigration
Lawyers Association’s (AILA)
Sam Williamson Mentor
Award and a co-recipient, as
a member of the AILA Amicus
Committee, of the 2010 Jack
Wasserman Litigation Award.
Read more about Lee A.
O’Connor on Page 18.
1 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101 et seq.).
2 For a general overview of these other aspects of the unlawful presence bars, the reader should refer to L. O’Connor, “Representing the
Unlawfully Present (pt. 1),” 08-09 Immigration Briefings 1 (Sept. 2008).
3 INA §212(a)(9)(B)(i)(I).
4 INA §212(a)(9)(B)(i)(II).
5 INA §212(a)(9)(C)(i).
6 INA §212(a)(9)(B)(ii).
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Inside Immigration
eign national to avoid the accrual of unlawful presence. Lawful status, by
contrast, refers to extension, change, or adjustment of status.7
Effective Date of Unlawful Presence
Since the unlawful presence bars were first created by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRAIRA),8 no period
of time prior to the April 1, 1997, effective date is considered unlawful presence for purposes of the three-year, ten-year, or permanent bars.9 With respect to the permanent bar, legacy Immigration and Naturalization Service
(INS) initially took the position that unlawful presence before or after the
IIRAIRA effective date would count.10 However, legacy INS eventually reversed itself and concluded that only unlawful presence after April 1, 1997,
will count.11
AILA’s Immigration and
Nationality Act, 2010
Edition includes all
new provisions through
March 1, 2010. Visit
our bookstore for details.
Aggregate and Continuous Unlawful Presence;
Periods of Unlawful Presence Separated by Authorized Stay
For the three– and ten-year bars, the unlawful presence must be continuous, not aggregated.12 For the permanent bar, however, the unlawful presence need not be continuous. Rather, as illustrated by the language of the
statute, for purposes of the permanent bar, periods of unlawful presence
acquired during different stays in the United States are counted in the aggregate.13 Therefore, a foreign
national who departed the United States after having been unlawfully present on three separate occasions for five months each would not be subject to the three– or ten-year bar, but would be subject to
the permanent bar.14
Although the unlawful presence may not be aggregated for the three– and ten-year bars, U.S. Citizenship
and Immigration Services (USCIS) contends that periods of unlawful presence separated by authorized stay
may be added together if they occurred during the same stay in the United States.15 The U.S. Department of
State (DOS) takes the same position: “[A]lthough periods of unlawful presence accrued in connection with
separate/separate trips to the U.S. cannot be aggregated together when determining whether 9B’s minimum
of 181 days has been met, periods of unlawful presence accrued during the same/same stay are/are counted
together.”16 Under this interpretation, if a foreign national was unlawfully present for 150 days, achieved an
authorized category for a period of time, then subsequently became unlawfully present for 100 more days,
the foreign national would have 250 days of unlawful presence for purposes of INA §212(a)(9)(B).
7 See Adjudicator’s Field Manual (AFM) chs. 40.9.2(a)(2), (3)(B); see also U.S. Department of Justice (DOJ) Memorandum, J. Podolny,
“Interpretation of ‘Period of Stay Authorized by the Attorney General’ in determining ‘unlawful presence’ under INA section 212(a)(9)(B)(ii)” at 3
(Mar. 27, 2003), published on AILA InfoNet at Doc. No. 03042140 (posted Apr. 21, 2003).
8 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, 110 Stat. 3009.
9 Matter of Rodarte, 23 I&N Dec. 905, 911 (BIA 2006); AFM chs. 40.9.2(a)(4)(A)–(E), (9)(A).
10 See legacy INS Memorandum, P. Virtue, “Implementation of Section 212(a)(6)(A) and 212(a)(9) Grounds of Inadmissibility” (Mar. 31, 1997),
published on AILA InfoNet at Doc. No. 97033190 (posted Mar. 31, 1997) (“For purposes of section 212(a)(9)(C), time in ‘unlawful presence’ may
accrue prior to April 1, 1997.”).
11 Legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997). When the permanent bar is based on
unlawful entry after a prior removal, only entries after April 1, 1997, will incur the bar. However, the prior removal could have been before or after
April 1, 1997; P.L. 104-208 Update No. 36: 212(a)(9)(A)–(C), 212(a)(6)(A) and (B), 98 State 060539 (Apr. 1998), published on AILA InfoNet at
Doc. No. 98040490 (posted Apr. 4, 1998).
12 AFM ch. 40.9.2(a)(4)(A); legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of
the Immigration and Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
13 See INA §212(a)(9)(C)(i)(I); AFM chs. 40.9.2(a)(1)(B), (4)(B), (4)(E)(i).
14 See P.L. 104-208 Update No. 36: 212(a)(9)(A)–(C), 212(a)(6)(A) and (B), 98 State 060539 (Apr. 1998), published on AILA InfoNet at Doc.
No. 98040490 (posted Apr. 4, 1998); see also AFM ch. 40.9.2(a)(4)(B).
15 AFM ch. 40.9.2(a)(4)(A).
16 Treatment of Adjustment Application for Purposes of Determining Unlawful Presence under INA 212(a)(9)(B), 00 State 102272 (May 30,
2000), published on AILA InfoNet at Doc. No. 00060201 (posted June 2, 2000).
2
© 2010 American Immigration Lawyers Association. all rights reserved.
Determining Unlawful Presence
There is a textual argument against this position. In effect, the government’s position that periods
of unlawful presence separated by authorized stay may be added together essentially views authorized
stay as merely tolling the accrual of unlawful presence. When a period of time is “tolled,” it temporarily
stops, but then resumes at the same point when the tolling stops.
Significantly, the statute identifies several situations where unlawful presence does accrue. For most
of these exceptions, the statute enumerates categories of foreign nationals who are not considered to be
unlawfully present.17 However, one of the exceptions is worded differently. This exception provides that
unlawful presence is “tolled” during the time a foreign national is seeking to change or extend nonimmigrant status.18
If Congress had intended that unlawful presence prior to attainment of authorized stay could be added to unlawful presence after the expiration of authorized stay, it would have worded all the exceptions
similar to the tolling provision. The fact that Congress indicated that unlawful presence is “tolled” in
this one situation, but used different language in other situations, must be interpreted as meaningful.19
The most reasonable interpretation is that, except when a foreign national seeks extension or change of
nonimmigrant status, the unlawful presence clock must be restarted after a foreign national achieves
authorized stay.
The position of the government—i.e., that periods of unlawful presence separated by authorized stay
may be added together if occurring during any single stay in the United States—boils down to a claim
that authorized stay “tolls” unlawful presence. As illustrated by the language of the INA, tolling only
occurs when a foreign national seeks to extend or change nonimmigrant status.
Statutory Exceptions to Unlawful Presence
As noted above, unlawful presence occurs when a foreign national remains in the
United States after the expiration of an authorized stay, or enters without inspection. The statute enumerates several categories of foreign nationals who are not
considered to be unlawfully present.20 In addition, USCIS has the authority to determine by policy additional categories of foreign nationals who are in POSABAG.
Before examining these categories, it is important to note that USCIS has taken the
position that the statutory exceptions only eliminate unlawful presence for purposes
of the three– and ten-year bars, but not the permanent bar.
To learn
more, check
out AILA’s Audio/
Web seminar
titled Unlawful
Presence and
Eligibility for
Waivers.
In a memorandum issued on March 31, 1997, Paul W. Virtue, then–legacy INS
Acting Executive Associate Commissioner, indicated: “These [statutory] exceptions are not applicable when considering ‘unlawful presence’ for purposes of section 212(a)(9)(C).”21 Similarly, a January 27, 2003, legacy INS memorandum by
Johnny Williams, then Executive Associate Commissioner, discussing the statutory exception for beneficiaries of the Family Unity program—one of the statutory exceptions to unlawful presence—suggests that the exception is limited to the three– and ten-year bars. “For purposes
of the application of section 212(a)(9)(B) of the Act, if a foreign national is granted FUP [Family
Unity Program] benefits, he or she will be deemed to be in a period of stay authorized by the Attorney
17 INA §§212(a)(9)(B)(iii)(I)–(V).
18 INA §212(a)(9)(B)(iv).
19 When Congress includes particular language in one section of a statute, but omits it in another section of the same statute, it must be presumed that Congress intended the difference in language to have real and substantial effect. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987)
(quoting Russello v. United States, 464 U.S. 16, 21 (1983)); INS v. Phinpathya, 464 U.S. 183, 189–90 (1984).
20 INA §§212(a)(9)(B)(iii)–(iv).
21 See legacy INS Memorandum, P. Virtue, “Implementation of Section 212(a)(6)(A) and 212(a)(9) Grounds of Inadmissibility” (Mar. 31, 1997),
published on AILA InfoNet at Doc. No. 97033190 (posted Mar. 31, 1997).
© 2010 American Immigration Lawyers Association. all rights reserved.
3
Inside Immigration
General.”22 Most recently, on May 6, 2009, USCIS modified the Adjudicator’s Field Manual (AFM) to
specify that the statutory exceptions “apply only to grounds of inadmissibility listed in section 212(a)
(9)(B) of the Act, and do not apply for purposes of inadmissibility under section 212(a)(9)(C) of the
Act.”23 However, USCIS agrees that the categories identified by its policy are considered POSABAG
for purposes of the three-year, ten-year, and permanent bars.24
USCIS articulates two reasons for this distinction. First, the statutory exceptions are contained in INA §212(a)(9)(B), not INA §212(a)(9)(C). The
language of the statutory exceptions provides that the foreign national shall
not accumulate unlawful presence “under clause (i)” while the foreign national is in the listed category. Thus, the reference to “clause (i)” means INA
§212(a)(9)(B)(i), relating to the three– and ten-year bars.25 Accordingly, the
literal language of the exception only applies to the three– and ten-year bars
and not the permanent bars. Since the language of the statutory exceptions
is limited to the three– and ten-year bars, the argument is that the omission of the exception for the permanent bar must be treated as significant.
Generally, the inclusion of particular language in one provision, and the
omission of the same language in another provision, is a rule of statutory
construction supporting the notion that the omission was deliberate.26
Second, USCIS contends that the statutory exceptions should not apply
to the permanent bar, because inadmissibility under INA §212(a)(9)(C)(i)
(I) rests on a more serious immigration violation than simple unlawful presence, requiring an unlawful return or attempted return in addition to the
unlawful presence.27
For access to USCIS
adjudications procedures and policy materials, check out AILA’s
publication USCIS
Adjudicator’s Field
Manual (AILA member
price $72).
Consequently, USCIS contends that foreign nationals identified in INA §§212(a)(9)(B)(iii) and
(iv)—i.e., minors, bona fide asylum applicants, Family Unity recipients, battered spouses and children,
victims of trafficking, and foreign nationals with a pending application for change or extension of
nonimmigrant status—accrue unlawful presence for purposes of the permanent bar, whereas other categories identified by USCIS policy do not. However, there are counterarguments that counsel should
raise if faced with the issue.
Counterarguments to USCIS Contentions on the Permanent Bar
First, it seems unlikely that Congress wished to establish different standards for determining unlawful presence under the three– and ten-year bars on the one hand, and the permanent bar on the other.
While inadmissibility under INA §212(a)(9)(C) rests on a more serious immigration violation than
simple unlawful presence under INA §212(a)(9)(B), that is the reason why the penalties imposed by
INA §212(a)(9)(C) are much harsher than those imposed by the three– and ten-year bars. It is not a
22 Legacy INS Memorandum, J. Williams, “Memorandum Regarding Family Unity Benefits and Unlawful Presence” at 2 ( Jan. 27, 2003), published on AILA InfoNet at Doc. No. 03013042 (posted Jan. 30, 2003).
23 AFM ch. 40.9.2(b)(2).
24 See, e.g., AFM ch. 40.9.2(b)(3) (“It is USCIS’ policy that these exceptions apply to unlawful presence accrued for purposes of sections
212(a)(9)(B) and (C)(i)(I) of the Act unless otherwise noted in this section.”); legacy INS Memorandum, P. Virtue, “Additional Guidance for
Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No.
97061790 (posted June 17, 1997) (“For purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act only, the Service considers the following classes of aliens to be present in the United States pursuant to a period of stay authorized by the Attorney General.”).
25 See INA §§212(a)(9)(B)(iii)(I)–(III). The statute uses slightly different language for victims of trafficking and battered spouses and children; it
provides that clause (i) shall not apply to those groups. The statute further provides that clause (i)(I)—i.e., the three-year bar—shall be tolled for
non-frivolous applications for change or extension of nonimmigrant status. INA §212(a)(9)(B)(iv)(III). See also AFM ch. 40.9.2(b)(3)(B) (“The
above described statutory exception applies to section 212(a)(9)(B)(i)(I) [the three-year bar] of the Act; it does not apply to section 212(a)(9)(B)
(i)(II) [the ten-year bar] or (C)(i)(I) [the permanent bar] of the Act.”).
26 See Cardoza-Fonseca, 480 U.S. 421.
27 AFM ch. 40.9.2(b)(3).
4
© 2010 American Immigration Lawyers Association. all rights reserved.
Determining Unlawful Presence
reason to interpret the term “unlawful presence” differently with respect to the two provisions. In fact, it
is a basic rule of statutory construction that when the same term is used in different sections of a statute,
it is to be given the same meaning in each section.28
Second, USCIS’s interpretation ignores the so-called “rule of lenity”—i.e., that deportation and exclusion statutes must be construed in favor of the foreign national.29
Third, it is a fallacy of logic to conclude that the statutory exceptions must constitute unlawful presence for the permanent bar simply because they do not constitute unlawful presence for purposes of the
three– and ten-year bars. Significantly, the literal language of the provision tolling unlawful presence
for 120 days for individuals with non-frivolous applications for extension or change of status only applies to the three-year bar; it does not apply to the ten-year bar or the permanent bar.30 Nonetheless, by
policy, USCIS has extended the tolling provision not only to include the entire period the application
was pending, but also to cover the ten-year bar and the permanent bar, even though its literal language
limits the tolling to 120 days and only applies to the three-year bar.31
Fourth, clearly some of the statutory exceptions must be considered as exceptions for INA §212(a)
(9)(C), as well. Specifically, INA §212(a)(9)(B)(iii)(III) provides that Family Unity status shall not
be considered as unlawful presence “under clause (i).” It would be illogical to conclude that Family
Unity—a status created by statute—constitutes unlawful presence for purposes of the permanent bar.
The protections given by Family Unity status provide that the foreign national “may not be removed
or otherwise required to depart the United States,” and “shall be granted authorization to engage in
employment in the United States and be provided an ‘employment authorized’ endorsement or other
appropriate work permit.”32 These protections are virtually the same as those granted by asylum status,
which provide that the AG “shall not remove or return the alien,” and “shall authorize the alien to
engage in employment in the United States and provide the alien with appropriate endorsement of
that authorization.”33 Similarly, like an asylee, a Family Unity recipient may receive permission to travel
abroad, and “shall be inspected and admitted in the same immigration status as the foreign national had
at the time of departure.”34
Based on these factors, it must be concluded that Family Unity status as a matter of law does not
constitute unlawful presence for purposes of INA §212(a)(9)(C), notwithstanding the statutory language only exempting it in INA §212(a)(9)(B)(i). If the “under clause (i)” language is insufficient to
preclude Family Unity status from being authorized stay for purposes of INA §212(a)(9)(C), then the
language does not categorically preclude any of the statutory exceptions from being POSABAG under
INA §212(a)(9)(C). Likewise, USCIS’s acknowledgment that a non-frivolous application for change
or extension of nonimmigrant status does not constitute unlawful presence under the ten-year bar or
the permanent bar, despite the language limiting it to the three-year bar, further demonstrates that the
literal language of the statutory exceptions does not mean that they must be limited to the three– and
28 Commissioner of Internal Revenue v. Keystone Consolidated Industries, Inc., 508 U.S. 152, 159 (1993); Estate of Cowart v. Nicklos Drilling Co., 505
U.S. 469, 479 (1992); Sorenson v. Secretary of Treasury, 475 U.S. 851, 860 (1986).
29 See INS v. Errico, 385 U.S. 214, 225 (1966); Bonetti v. Rogers, 356 U.S. 691, 699 (1958); Tan v. Phelan, 333 U.S. 6, 10 (1948); Lok v. INS, 548
F.2d 37, 39 (2d Cir. 1977); Marino v. INS, 537 F.2d 686, 691 (2d Cir. 1976); Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975).
30 See INA §212(a)(9)(B)(iv).
31 See AFM chs. 40.9.2(b)(2)(G), (3)(B)–(C).
32 Immigration Act of 1990 (IMMACT90), §§301(a)(1)–(2), Pub. L. No. 101-649, 104 Stat. 4978.
33 INA §208(c)(1). An attempt could be made to distinguish asylum from Family Unity, based on the fact that asylum ultimately leads to permanent residence. However, the law also contemplates that a Family Unity recipient ultimately will receive permanent residence, and is allowed
to remain in the United States until that occurs. In fact, to receive an extension of Family Unity, the foreign national must show that the legalized relative filed an I-130 for the Family Unity recipient. See 8 CFR §236.15(e) (“However, an extension may not be granted if . . . a petition for
family-sponsored immigration status has not been filed on behalf of the applicant.”). Likewise, an individual who qualified for Family Unity as a
“child” on May 5, 1988, does not age out of Family Unity status even after turning 21.
34 8 CFR §236.16.
© 2010 American Immigration Lawyers Association. all rights reserved.
5
Inside Immigration
ten-year bars. Moreover, merely because USCIS takes the position that the statutory exceptions to
unlawful presence do not apply to INA §212(a)(9)(C) does not mean that the agency is correct. The
matter should be litigated when the facts allow.
Minors
The statute specifies that no period of time in which a foreign national is under the age of 18 is considered unlawful presence.35
Asylum Applicants
A foreign national who has a pending asylum application does not accrue unlawful presence, provided that the application is bona fide and the foreign national was not employed without authorization.36
For more on asylum procedure, see AILA’s Asylum Primer, Sixth Edition.
The application is considered “pending” during any period of administrative or judicial review. It does
not matter whether the asylum application was filed affirmatively or defensively.
The term “bona fide” means that the application was properly filed under a reasonably arguable basis
in fact or law. The denial or abandonment of an asylum claim is not determinative of whether the claim
was bona fide.37
Dependents of a principal asylum applicant also do not accrue unlawful presence, provided that the
claim is bona fide and the dependent does not work without authorization. If an asylum claim is determined not to be bona fide, the dependent does not accrue unlawful presence unless the reason the claim
is not bona fide can be attributed to the dependent. A principal’s unauthorized employment will not
cause a dependent to accrue unlawful presence until the time a determination is made that the principal
worked without authorization.38
A dependent’s claim is no longer pending if the principal notifies USCIS that the dependent is no
longer included on the asylum application, or if USCIS determines that the dependent relationship
no longer exists because the dependent is divorced from the principal or no longer is considered a
“child.”39
USCIS interprets the exception for asylum applicants to include all applicants for asylum, including derivative beneficiaries who seek status through an Asylee/Refugee Relative petition, Form I-730.
Consequently, a foreign national who was not included as a dependent on an I-589 ceases to accrue
unlawful presence at the time a qualified relative files Form I-730.40
Family Unity
The statute exempts the period in which the foreign national is the beneficiary of Family Unity protection.41 USCIS has taken the position that if an application for Family Unity is granted, the accrual
of unlawful presence will cease upon the date of filing of the application for Family Unity, Form I-817.
However, the filing of Form I-817 does not by itself stop the accrual of unlawful presence; if the application is denied, the foreign national will continue to accrue unlawful presence as if the application
were never filed.42
35 INA §212(a)(9)(B)(iii)(I).
36 INA §212(a)(9)(B)(iii)(II).
37 AFM ch. 40.9.2(b)(2)(B)(i).
38 AFM ch. 40.9.2(b)(2)(B)(ii).
39 Id. With respect to dependent children, the AFM cautions that under the Child Status Protection Act (Pub. L. No. 107-208, 116 Stat. 927
(2002)), an unmarried son or daughter of a principal asylum applicant who was under 21 at the time the I-589 was filed continues to be classified
as a “child” while the application remains pending. AFM ch. 40.9.2(b)(2)(B)(iii).
40 AFM chs. 40.9.2(b)(2)(B)(ii), (C).
41 INA §212(a)(9)(B)(iii)(III).
42 AFM ch. 40.9.2(b)(2)(D); legacy INS Memorandum, J. Williams, “Memorandum Regarding Family Unity Benefits and Unlawful Presence” at
6
© 2010 American Immigration Lawyers Association. all rights reserved.
Determining Unlawful Presence
In Family Unity cases, it is important to remember that there are actually
two types of Family Unity. Section 301 of the Immigration Act of 1990
(IMMACT90)43 initially made Family Unity available to the relatives of
foreign nationals who received temporary residence during the initial application periods of the INA §245A and the Special Agricultural Worker
(SAW) programs. However, the initial application period of the INA §245A
program was extended by various lawsuits challenging certain aspects of
legacy INS’s implementation of this program. These lawsuits resulted in a
long and complex litigation history. Ultimately, Congress resolved the situation legislatively through the Legal Immigration and Family Equity Act
Amendments of 2000 (LIFE Act),44 allowing late amnesty claims to be
filed. Congress also created a separate Family Unity program for the relatives of late amnesty recipients.
Significantly, by its own terms, the statutory exemption for Family Unity
recipients only applies to foreign nationals who received Family Unity under IMMACT90 §301.45 Nevertheless, USCIS has declared that it will
treat Family Unity cases under the LIFE Act the same as IMMACT90
§301 cases for purposes of the accrual of unlawful presence.46 It is unclear
whether this means that LIFE Act cases will be considered as statutory
exemptions or as POSABAG. This distinction could be important for purposes of INA §212(a)(9)(C), due to the USCIS position that the former
category accrues unlawful presence for purposes of the permanent bar,
while the latter category does not.
For additional
publications that touch
upon these topics, see
AILA’s Asylum Primer
and Immigration Law &
the Family.
Battered Spouses and Children
The statute also creates an exception to the three– and ten-year bars for
battered spouses and children.47 This provision is very poorly drafted. It incorporates, by reference, the language of INA §212(a)(6)(A)(ii),48 but substitutes the phrase “violation of the terms of the alien’s nonimmigrant visa”
for “unlawful entry into the United States.” Thus, the statutory exception
to unlawful presence seems to say that battered spouses and children are only exempted from unlawful
presence if they entered with a nonimmigrant visa. By implication, battered spouses and children who
entered without inspection accrue unlawful presence even if there is a connection between the abuse
and the unlawful entry.
USCIS has interpreted this confusing language to provide for an exception if the foreign national
“can establish a substantial connection between the abuse suffered, the unlawful presence, and his or her
departure from the United States.”49
Victims of Trafficking
Victims of trafficking are exempted from unlawful presence if the trafficking was “at least one central
reason for the alien’s unlawful presence.”50
2 ( Jan. 27, 2003), published on AILA InfoNet at Doc. No. 03013042 (posted Jan. 30, 2003).
43 IMMACT90, Pub. L. No. 101-649, 104 Stat. 4978.
44 LIFE Act Amendments of 2000, Pub. L. No. 106-554, appx. D, div. B, §§1501–06, 114 Stat. 2763, 2763A-324–28.
45 See INA §212(a)(9)(B)(iii)(III).
46 AFM ch. 40.9.2(b)(2)(D).
47 INA §212(a)(9)(B)(iii)(IV).
48 INA §212(a)(6)(A)(ii) provides an exception to inadmissibility based on being present without admission or parole for battered spouses or
children if “there was a substantial connection between the battery or cruelty . . . and the alien’s unlawful entry into the United States.”
49 AFM ch. 40.9.2(b)(2)(E).
50 INA §212(a)(9)(B)(iii)(V).
© 2010 American Immigration Lawyers Association. all rights reserved.
7
Inside Immigration
Application for Extension of Status or Change of Status is Pending
Finally, the statute tolls unlawful presence for foreign nationals who have a pending application for
change or extension of status.51 Originally, legacy INS interpreted this provision to apply to applications for adjustment of status in addition to applications to change or extend nonimmigrant status.52
However, legacy INS quickly reversed course, concluding that this provision only applies to requests for
extension or change of nonimmigrant status.53
The following requirements must be present for a foreign national to benefit from this tolling provision: (1) the individual must have been admitted lawfully or paroled into the United States; (2) the
application must be non-frivolous; (3) the application must be filed before the expiration of authorized
stay; and (4) the individual must not have been employed without authorization before or during the
pendency of the application.54
The literal language of this provision tolls the accrual of unlawful presence during the pendency of
the application, but such tolling is not to exceed 120 days.55 In addition, the statute’s language limits
the tolling provision to the three-year bar, but not the ten-year bar or the permanent bar.56 However,
by policy, USCIS has extended the 120-day tolling period to “cover the entire period during which an
application for EOS [extension of status] or COS [change of status] is pending.”57 USCIS also applies
the tolling provision to the ten-year and permanent bars, as well as the three-year bar.58 In extending
the statutory provision, USCIS reasoned that backlogs in adjudicating applications for extension or
change of status often extend beyond six months. Thus, foreign nationals could incur the three-year or
ten-year bar “through no fault of their own” if the application ultimately is denied.59
Categories Implicitly Exempted from Unlawful Presence
In addition to the categories for which the statute specifically indicates that unlawful presence does
not accrue, several additional categories are implicitly exempted from unlawful presence by the INA.
Lawful Permanent Residents
Lawful permanent residents (LPRs) are not subject to the unlawful presence bars. An LPR who
is charged with being deportable does not begin to incur unlawful presence until he or she becomes
subject to an administratively final order of removal by the immigration judge (IJ) or the Board of
Immigration Appeals (BIA).60
Even if an LPR was unlawfully present in the United States more than 180 days before becoming
an LPR, the unlawful presence is purged by the grant of LPR status.61 The statute states that “[a]ny
alien (other than an alien lawfully admitted for permanent residence)” who departs after accumulat51 INA §212(a)(9)(B)(iv).
52 Legacy INS Memorandum, P. Virtue, “Implementation of Section 212(a)(6)(A) and 212(a)(9) Grounds of Inadmissibility” (Mar. 31, 1997),
published on AILA InfoNet at Doc. No. 97033190 (posted Mar. 31, 1997) (“The exception for up to 120 days during the pendency of an application for change or extension of status . . . includes not only time during the pendency of an application for ‘change or extension’ of status but also
time during applications for ‘adjustment’ of status.”).
53 Legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997); see also AFM ch. 40.9.2(b)(2)(G).
54 INA §§212(a)(9)(B)(iv)(I)–(III).
55 INA §212(a)(9)(B)(iv)(III).
56 See INA §212(a)(9)(B)(iv).
57 AFM ch. 40.9.2(b)(2)(G).
58 AFM ch. 40.9.2(b)(2)(G).
59 Legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after 120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 2 (Mar. 3, 2000), published on AILA InfoNet at Doc. No. 00030774 (posted Mar. 7,
2000).
60 AFM ch. 40.9.2(b)(1)(A).
61 AFM chs. 40.9.2(b)(1)(A), (D).
8
© 2010 American Immigration Lawyers Association. all rights reserved.
Determining Unlawful Presence
ing the requisite periods of unlawful presence is inadmissible.62 Thus, the plain language of the statute
precludes an LPR from being subjected to the three-year or ten-year bars based on unlawful presence
before the grant of status. However, USCIS does not recognize any other status purging any previously accumulated unlawful presence. Indeed, USCIS specifically has indicated that grants of asylum,63
Temporary Protected Status (TPS),64 Family Unity,65 and Deferred Action66 do not erase any prior
unlawful presence. Even though the law authorizes travel outside the United States for asylees,67 foreign nationals granted TPS,68 and Family Unity recipients,69 USCIS has taken the position that these
individuals incur inadmissibility if they depart the country having been unlawfully present for more
than 180 days prior to receiving status.70
There is textual support for the USCIS position that only the grant of LPR status purges prior unlawful presence. Again, in describing the three– and ten-year bars, the INA begins by specifying that “[a]ny
alien (other than an alien lawfully admitted for permanent residence)” who departs after accumulating
the requisite periods of unlawful presence is inadmissible.71 Since foreign nationals granted these classifications are not LPRs, a departure by a foreign national who had accumulated more than 180 days
of unlawful presence presumably would trigger the bars. In other words, it appears that only a grant of
lawful permanent residence will purge previously accumulated unlawful presence.
Such a rule appears needlessly punitive when applied to individuals to whom Congress has granted
legal status, particularly when the law allows those individuals to travel. Moreover, the statute is not
entirely consistent. Even though it specifies that LPRs are not subject to the three– and ten-year bars,
it contains no similar language with respect to the permanent bar. It provides that “[a]ny alien” who has
been unlawfully present in the United States for an aggregate period of more than one year, and then
enters or attempts to reenter without being admitted, is inadmissible.72 Consequently, unless Congress
intended to subject an LPR who once had been unlawfully present to the permanent bar for entering
without inspection, it must be concluded that the language in INA §212(a)(9)(B) exempting LPRs
from the three– and ten-year bars is not determinative.
Conditional Residents
A conditional resident is an LPR and, therefore, does not accrue unlawful presence. However, if a
conditional resident fails to timely file a petition to remove conditions on residence, unlawful presence
begins to accrue as of the date the conditional status as an LPR expires.73
If a late filing is accepted by USCIS or the IJ, the foreign national will not be considered to have
accrued any periods of unlawful presence in the United States. When the late filing is not accepted,
62 INA §212(a)(9)(B)(i).
63 AFM ch. 40.9.2(a)(6)(C).
64 AFM ch. 40.9.2(b)(1)(b)(F)(iii).
65 AFM ch. 40.9.2(b)(2)(D).
66 AFM ch. 40.9.2(b)(3)( J).
67 INA §208(c)(1)(C); 8 CFR §§223.1(b), 223.2(b)(2).
68 INA §244(f )(3).
69 8 CFR §236.16 (A Family Unity recipient may receive permission to travel abroad and “shall be inspected and admitted in the same immigration status as the alien had at the time of departure.”).
70 See AFM ch. 40.9.2(a)(6)(C). Of course, the standard for a waiver of grounds of inadmissibility for asylees is a much more liberal waiver than
for foreign nationals generally subject to the unlawful presence bars. Compare INA §208(c) (allowing for a waiver for “humanitarian purposes,
to assure family unity, or when it is otherwise in the public interest”) with INA §212(a)(9)(B)(v) (requiring extreme hardship to a U.S. citizen
or LPR spouse or parent for a waiver of the three– and ten-year bars) and INA §212(a)(C)(ii) (requiring the foreign national to spend 10 years
outside the United States for the secretary of the U.S. Department of Homeland Security (DHS) to consent to the foreign national’s readmission
under the permanent bar).
71 INA §212(a)(9)(B)(i).
72 INA §212(a)(9)(C)(i).
73 AFM ch. 40.9.2(b)(1)(C)(ii); see also legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B) Relating to Unlawful Presence” (Sept. 19,
1997), published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 22, 1997); Letter from B. Cooper, legacy INS General Counsel, to R.
Klasko and D. Buffenstein (Dec. 10, 1999), published on AILA InfoNet at Doc. No. 99122271 (posted Dec. 22, 1999).
© 2010 American Immigration Lawyers Association. all rights reserved.
9
Inside Immigration
however, the period of unlawful presence begins to accrue as of the date the foreign national’s status as
a conditional permanent resident expired.74
If USCIS denies a timely application to remove conditions on residence, the foreign national is not
unlawfully present while awaiting removal proceedings in which the foreign national will renew the
application.75
When USCIS seeks to terminate conditional residence during the two-year period for cause, unlawful presence will begin to accrue as of the date USCIS actually terminates the foreign national’s
status as an LPR.76 If the foreign national seeks review of the termination in removal proceedings, he
or she will not accrue unlawful presence until the day after the termination becomes administratively
final.77
Nonimmigrants
The INA provides that unlawful presence is tolled during the time a foreign national is seeking
change or extension of nonimmigrant status.78 This implicitly recognizes that a foreign national admitted on a nonimmigrant visa is in a period of lawful stay. USCIS has adopted different rules for
when a nonimmigrant begins to accrue unlawful presence, depending on whether the foreign national
overstayed or violated a condition of admission. Regarding overstays, the rules that apply depend on
whether the foreign national was admitted with an I-94 indicating a date certain.
Foreign Nationals Admitted Until a Date Certain on Form I-94
In cases of an overstay, USCIS states that when an I-94 specifies a date certain for the expiration
of status, the foreign national begins to accrue unlawful presence the day after the expiration of the
I-94.79
In cases where a foreign national allegedly violated the conditions of admission while the I-94 was
still in effect, legacy INS originally contended that unlawful presence begins to run from the date a
foreign national committed a status violation.80 However, legacy INS modified that position shortly
afterward, and determined that a foreign national who violates status does not begin to accrue unlawful
presence on the date of the violation, but rather, only after the violation is found by an IJ or by USCIS
in connection with an application for an immigration benefit.81
Thus, if USCIS believes that a foreign national who is within the period specified in the I-94 has
violated the conditions of admission and commences removal proceedings, unlawful presence will begin the day after the IJ finds a violation, or the day after the Form I-94 expires, whichever occurs first.82
74 AFM ch. 40.9.2(b)(1)(C)(iii); legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B) Relating to Unlawful Presence” (Sept. 19, 1997),
published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 22, 1997) (“If the condition removal application is not timely filed, the foreign
national is considered unlawfully present unless the INS agrees that it was not timely filed for good cause.”).
75 Letter from B. Cooper, legacy INS General Counsel, to R. Klasko and D. Buffenstein (Dec. 10, 1999), published on AILA InfoNet at Doc. No.
99122271 (posted Dec. 22, 1999).
76 AFM ch. 40.9.2(b)(1)(C)(iv); legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B) Relating to Unlawful Presence” (Sept. 19, 1997),
published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 22, 1997).
77 AFM ch. 40.9.2(b)(1)(C)(v).
78 INA §212(a)(9)(B)(iv).
79 AFM ch. 40.9.2(b)(1)(E)(i); legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B) Relating to Unlawful Presence” (Sept. 19, 1997), published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 22, 1997).
80 “[A]n alien present on a visitor visa begins to accrue unlawful presence on the day that he or she enters into unauthorized employment.
Unlawful presence is also triggered by the commission of a criminal offense that renders an alien inadmissible or removable.” Legacy INS
Memorandum, P. Virtue, “Implementation of Section 212(a)(6)(A) and 212(a)(9) Grounds of Inadmissibility” (Mar. 31, 1997), published on AILA
InfoNet at Doc. No. 97033190 (posted Mar. 31, 1997) (emphasis in original).
81 Legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B) Relating to Unlawful Presence” (Sept. 19, 1997), published on AILA InfoNet at
Doc. No. 97092240 (posted Sept. 22, 1997).
82 AFM ch. 40.9.2(b)(1)(E)(i).
10
© 2010 American Immigration Lawyers Association. all rights reserved.
Determining Unlawful Presence
The AFM does not directly address the situation where an IJ’s finding is
appealed to the BIA. However, an example in the AFM sheds some light
on the issue. If the IJ’s decision is affirmed by the BIA on appeal, unlawful presence will commence effective the day after the IJ’s decision.83
Presumably, if the IJ’s decision is reversed, no unlawful presence will accrue. Similarly, in a September 19, 1997, memorandum, Paul Virtue stated
that “unlawful presence begins to accrue as of the date of the order of the
IJ, whether or not the decision is appealed.”84 Oddly, this position is contrary
to the approach taken by the agency with respect to appeals on most other
types of cases.
If USCIS finds a violation of the foreign national’s nonimmigrant status in connection with an application for benefits, unlawful presence will
begin the day after the agency denies the application, or the day after
Form I-94 expires, whichever is earliest.85 For example, a foreign national
admitted on a B-2 visa is employed without authorization, and seeks an
extension of stay. USCIS denies the extension based on the foreign national’s unauthorized employment. Unlawful presence will begin the day
after USCIS’s denial of the extension, not on the day the foreign national
first engaged in unauthorized employment.
In cases where
a foreign national admitted
for D/S appeals
an IJ’s finding of
a status violation to the BIA,
the AFM suggests that unlawful presence
does not commence until the
day after the
BIA upholds the
decision.
Foreign Nationals Admitted for Duration of Status
USCIS applies different rules for foreign nationals admitted without an I-94, or when the I-94 indicates duration of status (D/S). For foreign nationals whose I-94 indicates D/S, unlawful presence does not
begin until USCIS determines, in adjudicating an application for immigration benefits, that the foreign
national violated status, or until an IJ finds that the foreign national has violated status. In addition, once
this finding occurs, the unlawful presence is not retroactive—it starts on the date of the finding.86
In cases where a foreign national admitted for D/S appeals an IJ’s finding of a status violation to the
BIA, the AFM suggests that unlawful presence does not commence until the day after the BIA upholds
the decision.
Example: A foreign national, admitted as a nonimmigrant for D/S, is placed in removal proceedings. The foreign national does not accrue unlawful presence while the proceedings are pending. If
the IJ rules in the foreign national’s favor on the removal charge, no unlawful presence applies to
the foreign national. If the IJ sustains the removal charge, unlawful presence begins to accrue the
day after the IJ’s decision becomes administratively final.87
Inexplicably, this rule is different from the one where the IJ finds a status violation by a foreign national
admitted until a date certain. There, unlawful presence begins with the IJ’s finding even if the decision
is appealed.
83 AFM ch. 40.9.2(b)(5)(A) (Example 4).
84 Legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B) Relating to Unlawful Presence” (Sept. 19, 1997), published on AILA InfoNet at
Doc. No. 97092240 (posted Sept. 22, 1997) (emphasis added).
85 AFM ch. 40.9.2(b)(1)(E)(i).
86 AFM ch. 40.9.2(b)(1)(E)(ii); legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after 120-day tolling
period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 2 (Mar. 3, 2000), published on AILA InfoNet at Doc. No.
00030774 (posted Mar. 7, 2000); letter from B. Cooper, legacy INS General Counsel, to R. Klasko and D. Buffenstein (Dec. 10, 1999), published
on AILA InfoNet at Doc. No. 99122271 (posted Dec. 22, 1999); P.L. 104-208 Update No. 36: 212(a)(9)(A)–(C), 212(a)(6)(A) and (B), 98 State
060539 (Apr. 1998), published on AILA InfoNet at Doc. No. 98040490 (posted Apr. 4, 1998); P.L. 104-208 Update No. 34—212(a)(9)(B), 97 State
235245 (Dec. 1997), published on AILA InfoNet at Doc. No. 97122390 (posted Dec. 23, 1997).
87 AFM ch. 40.9.2(b)(5)(A) (Example 3). The decision of the BIA is the final agency decision, except when a case is reviewed by the AG. 8 CFR
§1003.1(d)(7).
© 2010 American Immigration Lawyers Association. all rights reserved.
11
Inside Immigration
Canadians Admitted Without a Visa; Mexicans Admitted with a Border Crossing Card
Foreign nationals admitted without an I-94 are treated the same as foreign nationals whose I-94
indicates D/S. Most Canadians are admitted without a visa and are not issued an I-94. Obviously, they
do not have an I-94 that expires on a date certain. Accordingly, USCIS has determined that Canadians
who are admitted following inspection should be treated similarly to a D/S case—i.e., they begin to
accrue unlawful presence when an IJ or USCIS makes a finding.88
The rules are much less clear for Mexicans who entered on a border crossing card. Most of the guidance
issued by USCIS on this question has related to INA §222(g), which voids the visa of a nonimmigrant
who remains beyond POSABAG. However, both the agency and DOS have adopted a single interpretation of the term “period of stay authorized by the Attorney General” for purposes of INA §222(g) and
§§212(a)(9)(B) and (C).89 Therefore, legacy INS guidance regarding POSABAG for §222(g) purposes
also should be persuasive for determining unlawful presence under §§212(a)(9)(B) and (C).
Based on the guidance, it appears that the rules might vary depending on the type of document used.
Until March 31, 1998, legacy INS issued Forms I-186 and I-586, Nonresident Alien Border Crossing Card
(legacy INS-issued BCC), at ports-of-entry along the U.S.-Mexican border. In addition, DOS continues to
issue a B1/B2 Visa and Border Crossing Card (DOS-issued B1/B2/BCC) at consular posts in Mexico.
USCIS has consistently maintained that foreign nationals who entered with a legacy INS-issued
BCC do not accrue unlawful presence unless, in the course of an IJ or USCIS adjudicating an application for benefits, there has been a finding that the foreign national violated status.90 However, USCIS
appears to have altered its position several times over the years with respect to foreign nationals who
entered on a DOS-issued B1/B2/BCC.
In a 1999 letter to former AILA President Kathleen Campbell Walker, legacy INS indicated that
foreign nationals admitted on a DOS-issued B1/B2/BCC “with or without an I-94 are subject to
INA §222(g) if they have ‘remained beyond the period of stay authorized by the Attorney General.’”91
However, the letter went on to state:
[A]s a matter of practicality, those subjects admitted on the basis of a nonimmigrant visa, including
[a DOS-issued B1/B2/BCC], who have not been issued Form I-94, such as those entering for less
than 72 hours and remaining within 25 miles of the border, are, in general, not subject to Section
222(g) unless a formal finding of a status violation has been made by the INS or an IJ, that resulted
in the termination of the authorized period of stay.92
Thus, it appeared that foreign nationals who entered with a DOS-issued B1/B2/BCC would accrue
unlawful presence only if they were issued an I-94 and overstayed, or were found to have violated status
by an IJ or by USCIS on an application for benefits.
88 AFM ch. 40.9.2(b)(1)(E)(iii); DOS Advisory Opinion, “INA 212(a)(9)(B) and Canadians,” (Oct. 1999), published on AILA InfoNet at Doc.
No. 99102090 (posted Oct. 20, 1999). During a recent AILA Michigan-U.S. Customs and Border Patrol (CBP) liaison meeting, CBP stated that
it is of the opinion that Canadian visitors accrue unlawful presence when their status ends, which is assumed to be six months after being admitted as visitors. CBP states that it is not bound by USCIS “policy” statements. This position by CBP is unfounded. The law indicates that unlawful
presence only accrues after POSABAG. INA §212(a)(9)(B)(ii). As the designee of the AG, USCIS has the authority to conclude that Canadians
admitted without a visa or I-94 are in POSABAG until USCIS determines, in adjudicating an application for immigration benefits, that the foreign national violated status, or until an IJ finds that the foreign national has violated status.
89 See legacy INS Memorandum, M. Pearson, “Section 222(g) of the Immigration and Nationality Act (Act)” at 1 (Mar. 3, 2000), published on
AILA InfoNet at Doc. No. 00030773 (posted Mar. 7, 2000); legacy INS Memorandum, M. Pearson, “Section 222(g) of the Immigration and
Nationality Act (Act)” ( Jan. 14, 1999), published on AILA InfoNet at Doc. No. 99011590 (posted Jan. 15, 1999).
90 Legacy INS Memorandum, M. Pearson, “Section 222(g) of the Immigration and Nationality Act (Act)” at 1 (Mar. 3, 2000), published on AILA
InfoNet at Doc. No. 00030773 (posted Mar. 7, 2000); legacy INS Memorandum, M. Pearson, “Section 222(g) of the Immigration and Nationality
Act (Act)” ( Jan. 14, 1999), published on AILA InfoNet at Doc. No. 99011590 (posted Jan. 15, 1999).
91 See Letter from M. Hrinyak, legacy INS Acting Assistant Commissioner, to K. Walker (Apr. 1, 1999), published on AILA InfoNet at Doc. No.
99042190 (posted Apr. 21, 1999).
92 Id.
12
© 2010 American Immigration Lawyers Association. all rights reserved.
Determining Unlawful Presence
In 2000, legacy INS reversed itself and stated that foreign nationals admitted on a DOS-issued B1/
B2/BCC were subject to INA §222(g) if they remained in the United States beyond the authorized
period, even if no I-94 was issued.93 Therefore, the rule appeared to depend on the type of document
the foreign national used to enter. Unless an I-94 was issued, foreign nationals who entered with a
legacy INS–issued BCC would not accrue unlawful presence unless there had been a finding by an IJ
or USCIS in the course of adjudicating an application for benefits that the foreign national violated
status. However, foreign nationals who entered on a DOS-issued B1/B2/BCC would accrue unlawful
presence after the expiration of their authorized stay, regardless of whether their authorized stay had
been documented on an I-94.
However, the May 2009, revisions to the AFM make no distinction based on the type of document
used to enter the United States. While the title of the relevant section cites Canadians as an example,
the AFM broadly states, “Nonimmigrants, who are not issued a Form I-94, Arrival/Departure Record,
are treated as nonimmigrants admitted for D/S for purposes of determining unlawful presence.”94
These apparently conflicting positions could be explained by the fact that
most of the guidance has related to INA §222(g), rather than INA §§212(a)
(9)(B) and (C). Although the term “period of stay authorized by the Attorney
General” has been given a uniform interpretation for INA §§222(a) and
212(a)(9), it is noteworthy that INA §222(g) contains an additional requirement that the foreign national have been admitted “on the basis of a nonimOn a related
95
migrant visa.” If a foreign national was not admitted on a nonimmigrant
note, you can
visa, the visa-voiding provisions of INA §222(g) are not triggered, even if
search electronithe foreign national overstayed a POSABAG. Consequently, much of the
cally for these and
discussion could relate to the issue of whether the entry document was a
other sections of
nonimmigrant visa, rather than the issue of when a foreign national can be
the INA and CFR on
found to have remained beyond the authorized period of stay. For example, a
AILALink.
legacy INS–issued BCC is considered in lieu of a visa, but technically is not
a nonimmigrant visa. A DOS-issued B1/B2/BCC, on the other hand, is a nonimmigrant visa, even
though it also bears the designation “border crossing card.”96
Thus, entry with an INS-issued BCC will not trigger INA §222(g), regardless of the overstay issue,
because the document is not a visa. An entry with a DOS-issued B1/B2/BCC visa, however, will fulfill the entry with a visa requirement of INA §222(g). It also will fulfill the overstay elements of INA
§§222(g) and 212(a)(9) if an I-94 was issued, or if an IJ or USCIS finds a violation.
Parolees
Finally, the terms of the statute make clear that parole status cannot be considered unlawful presence.
The statute defines unlawful presence as being “present in the United States without being admitted or
paroled.”97 Thus, a foreign national who has been paroled “does not accrue unlawful presence as long as the
parole lasts.”98 However, if parole is revoked, or a foreign national overstays the period of parole authorization, unlawful presence begins to accrue the day following the expiration of the parole authorization.99
93 “Aliens admitted with a combination B-1/B-2 NIV/BCC issued by DOS are subject to section 222(g) if they remain in the United States beyond the authorized admission, including those who were not issued a Form I-94. However, the overstay should be documented through a sworn
statement or other credible evidence.” See legacy INS Memorandum, M. Pearson, “Section 222(g) of the Immigration and Nationality Act (Act)”
at 3 (Mar. 3, 2000), published on AILA InfoNet at Doc. No. 00030773 (posted Mar. 7, 2000) (emphasis in original).
94 AFM ch. 40.9.2(b)(1)(E)(iii).
95 INA §222(g)(1).
96 Letter from M. Hrinyak, legacy INS Acting Assistant Commissioner, to K. Walker (Apr. 1, 1999), published on AILA InfoNet at Doc. No.
99042190 (posted Apr. 21, 1999).
97 INA §212(a)(9)(B)(ii).
98 AFM ch. 40.9.2(a)(3)(D); see also AFM ch. 40.9.2(b)(1).
99 AFM ch. 40.9.2(b)(1)(G); legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B) Relating to Unlawful Presence” (Sept. 19, 1997), published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 22, 1997).
© 2010 American Immigration Lawyers Association. all rights reserved.
13
Inside Immigration
USCIS asserts that only parole under INA §212(d)(5)(A) qualifies for purposes of INA §212(a)
(9). Conditional parole under INA §236 cannot be considered parole for purposes of the unlawful
presence bars.100
There are only two types of parole: (1) parole under INA §212(d)(5)(A); and (2) conditional
parole under INA §236. Parole under INA §212(d)(5)(A) may be based on urgent humanitarian
reasons, or because it provides a significant public benefit.101 Significant public benefit parole occurs when a foreign national is needed to participate in a law enforcement investigation, prosecution, or other legal proceedings.102 Advance parole does not have any separate statutory authority.
Rather, it is based on INA §212(d)(5)(A).103 Similarly, deferred inspection is a type of parole under
INA §212(a)(d)(A).104
The second type of parole—conditional parole under INA §236(a)—occurs when the U.S. Department
of Homeland Security (DHS) releases an arrested foreign national from custody without a bond.105 In
effect, it is a release on recognizance.106 Conditional parole is not considered a form of parole under
INA §212(d)(5)(A).107
Policy Exceptions to Unlawful Presence
As a matter of policy, in addition to the specific and implied statutory exceptions to unlawful presence,
USCIS has identified various categories to be present under POSABAG. Generally, POSABAG categories are created when USCIS has accorded a status to a foreign national, or when a foreign national
has filed an application for some types of status. The following statuses are considered POSABAG:
asylum; cancellation of removal and suspension of deportation; conditional residence; Cuban-Haitian
Entrant; Deferred Enforced Departure (DED); deferred action status; parole; refugee status; TPS;
voluntary departure; and withholding of removal. The following pending applications for benefits also
are considered POSABAG: adjustment of status; registry; temporary residence under the INA §245A
or SAW programs; and Cuban-Haitian applicants.
Asylees and Refugees
Asylum and refugee status constitute POSABAG.108 Asylees and refugees do not accrue unlawful
presence under the three-year, ten-year, or permanent bars.109 However, as noted above, USCIS contends that a grant of asylum does not purge prior unlawful status. Thus, even though the law allows an
asylee to travel outside the United States on a Refugee Travel Document,110 an asylee who accumulated
100 AFM ch. 40.9.2(b)(1)(G).
101 INA §212(d)(5)(A).
102 See AFM ch. 54.1(b).
103 AFM ch. 54.1(a).
104 AFM ch. 40.6.2(a)(2)(ii).
105 AFM ch. 54.1(a).
106 Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1115 (9th Cir. 2007).
107 See Ortega-Cervantes, 501 F.3d at 1120; AFM ch. 40.6.2(a)(2)(ii); DHS Memorandum, G. Corbella, “Clarification of the Relation Between
Release Under Section 236 and Parole Under Section 212(d)(5) of the Immigration and Nationality Act” (Sept. 28, 2007), published on AILA
InfoNet at Doc. No. 09121790 (posted Dec. 17, 2009).
108 AFM chs. 40.9.2(b)(1)(b)(F)(i)–(ii); legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2 ( June 12, 2002), published on AILA InfoNet
at Doc. No. 02062040 (posted June 20, 2002); legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after 120-day
tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 3 (Mar. 3, 2000), published on AILA InfoNet at Doc. No.
00030774 (posted Mar. 7, 2000); legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the
Immigration and Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
109 Legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997). But see legacy INS Memorandum, J.
Williams, “Unlawful Presence” at 2 ( June 12, 2002), published on AILA InfoNet at Doc. No. 02062040 (posted June 20, 2002) (stating that various enumerated categories, including asylees and refugees, constitute POSABAG for purposes of §212(a)(9)(B)(ii) “and for no other purpose or
benefit under the Act.”).
110 INA §208(c)(1)(C); 8 CFR §§223.1(b), 223.2(b)(2).
14
© 2010 American Immigration Lawyers Association. all rights reserved.
Determining Unlawful Presence
more than 180 days of unlawful presence before applying for asylum would trigger inadmissibility under INA §212(a)(9)(B) if he or she were to depart the country.111
Cancellation of Removal
Foreign nationals granted non-LPR cancellation of removal under INA §240A(b), or suspension
of deportation under former INA §244, also are considered POSABAG.112 Moreover, since a foreign
national granted non-LPR cancellation or suspension of deportation becomes an LPR,113 the grant will
eliminate any unlawful presence that might have accrued before relief was granted.114
It is noteworthy, however, that having a pending application for non-LPR cancellation of removal
or suspension of deportation is not considered authorized stay.115 Unless relief is granted, a foreign national who merely applies for cancellation of removal under INA §240A(b) will continue to accumulate
unlawful presence during the pendency of the application. It is unlikely that this position will prejudice
many people, since eligibility for non-LPR cancellation requires 10 years of continuous presence in the
United States.116 In the majority of cases, most of this period will have been spent unlawfully in the
United States.
Temporary Residents
In 1986, Congress passed the Immigration Reform and Control Act of 1986 (IRCA),117 providing
for two legalization programs: The SAW program for foreign nationals who performed 90 days of
agricultural labor between May 1, 1985, and May 1, 1986;118 and the INA §245A program for individuals who had resided in the United States prior to January 1, 1982.119 Both forms of legalization
involved a two-step process: (1) a period of temporary residence; (2) followed by permanent residence.
The application period for the INA §245A program ran from May 5, 1987, until May 4, 1988.120 The
111 See AFM ch. 40.9.2(a)(6)(C). Of course, the standard for a waiver of grounds of inadmissibility for asylees is a much more liberal waiver than
for foreign nationals generally subject to the unlawful presence bars. Compare INA §208(c) (allowing for a waiver for “humanitarian purposes, to
assure family unity, or when it is otherwise in the public interest”), with INA §212(a)(9)(B)(v) (requiring extreme hardship to a U.S. citizen or
LPR spouse or parent for a waiver of the three– and ten-year bars), and INA §212(a)(C)(ii) (requiring the foreign national to spend 10 years outside the United States for the DHS secretary to consent to the foreign national’s readmission under the permanent bar).
112 AFM ch. 40.9.2(b)(1)(D); legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2 ( June 12, 2002), published on AILA InfoNet at
Doc. No. 02062040 (posted June 20, 2002); legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after 120day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 3–4 (Mar. 3, 2000), published on AILA InfoNet
at Doc. No. 00030774 (posted Mar. 7, 2000); letter from B. Cooper, legacy INS General Counsel, to R. Klasko and D. Buffenstein (Dec. 10, 1999),
published on AILA InfoNet at Doc. No. 99122271 (posted Dec. 22, 1999).
113 INA §§240A(b)(1), (3). The law limits the total number of non-Nicaraguan Adjustment and Central American Relief Act (NACARA) (Pub.
L. No. 105-100, tit. II, 111 Stat. 2160, 2193–201 (1997)) grants of cancellation of removal to 4,000 per fiscal year. INA §240A(e)(1). Since 2004,
the immigration courts generally have granted cancellation of removal about 3,000 times per year, with a high of 3,580 in 2004 and a low of 2,943
in 2007. FY2009 Statistical Year Book at R2 (Table 15) (Executive Office for Immigration Review (EOIR) Mar. 2010). In 2003, only 2,345 cases
were granted. See FY2003 Statistical Year Book at R3 (Table 16) (EOIR Apr. 2004). Prior to 2003, the grant rate was much lower: 1,144 in 2002,
1,387 in 2001, 1,585 in 2000, 799 in 1999, and 343 in 1998. FY2002 Statistical Year Book at R3 (Table 16) (EOIR Apr. 2003). However, grants
of suspension of deportation subject to the cap were much higher in the years immediately following IIRAIRA, with 7,534 cases granted in 1998,
2,334 in 1999, 1,554 in 2000, before finally tailing off to 577 and 404 in 2001 and 2002. Id. These trends illustrate that the cap could be reached.
In such situations, IJs are instructed to reserve decision on the case until a grant becomes available. 8 CFR §§240.21(c)(1), 1240.21(c)(1). Thus,
we are unlikely to be faced with determining whether prior unlawful presence was purged for a foreign national granted conditional relief under
the prior system. See 62 Fed. Reg. 51760, 51761 (Oct. 3, 1997) (However, legacy INS acknowledged that a foreign national granted conditional
suspension of deportation or conditional cancellation of removal did not accrue unlawful presence while in conditional grantee status. See letter
from B. Cooper, legacy INS General Counsel, to R. Klasko and D. Buffenstein (Dec. 10, 1999), published on AILA InfoNet at Doc. No. 99122271
(posted Dec. 22, 1999)).
114 AFM ch. 40.9.2(b)(1)(D).
115 Legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
116 INA §240A(b)(1)(A).
117 Immigration Reform and Control Act of 1986 (IRCA), Pub. L. 99-603, 100 Stat. 3359 (1986).
118 INA §210.
119 INA §245A.
120 INA §245A(a)(1)(A).
© 2010 American Immigration Lawyers Association. all rights reserved.
15
Inside Immigration
application period under the SAW program ran from July 1, 1986, to November 30, 1988.121 The INA
§245A legalization program required that the temporary resident apply for permanent residence no
earlier than 18 months after the grant of temporary residence, and no later than 43 months after the
grant of temporary residence.122
Temporary residents under the SAW program adjusted, by operation of law, on December 1, 1990.123
Although the INA §245A program ended many years ago, temporary residents who have not yet adjusted to permanent residence are considered to be in a period of authorized stay.124
Withholding of Removal
Foreign nationals granted withholding of removal under INA §241(b)(3), withholding of deportation under prior INA §243(h), or deferral of removal under the Convention Against Torture125 stop
accruing unlawful presence on the date relief is granted.126
Temporary Protected Status
A foreign national granted TPS is considered to be maintaining lawful nonimmigrant status.127
Consequently, unlawful presence does not attach to time spent in TPS. Authorized stay begins on
the date a prima facie TPS application is filed, provided the application ultimately is approved. If the
application is approved, the period of authorized stay continues until TPS status is terminated. If the
application ultimately is denied, there is no protection from unlawful presence.128
The statute authorizes a foreign national with TPS to travel with the prior consent of the AG.129 Thus,
a TPS recipient who originally entered without inspection could briefly depart the United States and
return with advance parole, thereby presumably qualifying for adjustment of status under INA §245(a)
as having been “paroled.” However, a foreign national attempting this should be advised that the departure could trigger the three– or ten-year bars if he or she accumulated more than 180 days of unlawful
presence before applying for TPS. USCIS takes the position that a grant of TPS does not purge any
unlawful presence that may have accrued before the grant of TPS.130 Therefore, this tactic would probably require the foreign national to seek a waiver of inadmissibility under INA §212(a)(9)(B).
Moreover, a March 1991 advisory opinion from legacy INS also concluded that a TPS recipient’s
return to the United States with advance parole establishes eligibility for adjustment of status under
INA §245(a), but does not cure ineligibility under INA §245(c)(2) arising from any unlawful presence
or unauthorized employment prior to the grant of TPS.131 The agency’s rationale for this position is that
the regulations provide that a departure and subsequent reentry of a foreign national who has worked
121 INA §210(a)(1)(A); 8 CFR §210.1(c).
122 See INA §§245A(b)(1)(A), (2).
123 See INA §210(a)(2)(B); 8 CFR §210.5(a)(2). However, SAWs were required to apply for a Resident Alien Card on Form I-90. 8 CFR
§210.5(b).
124 AFM ch. 40.9.2(b)(1)(B).
125 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (entered
into force June 26, 1987); Pub. L. No. 105-277, Division G, Subdivision B, Title XXI, Sec. 2242, 112 Stat. 2681-822.
126 AFM chs. 40.9.2(b)(3)(K)–(L); legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2 ( June 12, 2002), published on AILA InfoNet
at Doc. No. 02062040 (posted June 20, 2002); legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after
120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 3 (Mar. 3, 2000), published on AILA
InfoNet at Doc. No. 00030774 (posted Mar. 7, 2000); legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections
212(a)(6) and 212(a)(9) of the Immigration and Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June
17, 1997).
127 INA §244(f )(4).
128 AFM ch. 40.9.2(b)(3)(G); legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2–3 ( June 12, 2002), published on AILA InfoNet at
Doc. No. 02062040 (posted June 20, 2002).
129 INA §244(f )(3).
130 AFM ch. 40.9.2(b)(1)(b)(F)(iii).
131 See P. Virtue, “Legal Opinion Temporary Protected Status and Eligibility for Adjustment of Status under Section 245” at 2 (Mar. 4, 1991)
(Genco Opinion 91-27), reprinted in 68 Interpreter Releases 461 (Apr. 22, 1991).
16
© 2010 American Immigration Lawyers Association. all rights reserved.
Determining Unlawful Presence
without authorization, or has not maintained a lawful immigration status on any previous entry into
the United States, does not erase INA §245(c)(2)’s bar to adjustment.132 However, this regulation probably lacks statutory authority. Under its provisions, anyone who ever has overstayed is forever barred
from adjustment. Significantly, however, INA §245(c)(2) uses the term “since entry into the United
States.” This must be construed to mean the most recent entry. If Congress had intended to bar someone forever, presumably it would have stated “since any entry.” Nevertheless, while some attorneys have
reported success in obtaining adjustment of status for foreign nationals granted TPS who departed on
advance parole, USCIS is unlikely to accept these arguments without a fight.
Deferred Enforced Departure
DED also constitutes an authorized period of stay beginning on the date specified in a presidential
directive, and ending when DED is no longer in effect.133
Deferred Action
USCIS originally indicated that deferred action status did not constitute POSABAG.134 However,
the agency reversed itself, concluding that unlawful presence stops on the date deferred action is granted, and resumes the day after deferred action is terminated.135
Applications for Adjustment of Status
Applications for adjustment of status under INA §§209 (asylee/refugee adjustment), 245, and 249
(registry), as well as Cuban-Haitian adjustment under IRCA,136 Nicaraguan and Cuban adjustment under the Nicaraguan Adjustment and Central American Relief Act (NACARA),137 and adjustment under the Haitian Refugee Immigration Fairness Act (HRIFA)138 are considered to be in POSABAG.139
A pending application for adjustment of status is a period authorized for the three– and ten-year bars,
as well as the permanent bar.140
To be considered POSABAG, the application must have been “properly filed” (i.e., it must meet the
general filing requirements of 8 CFR §103.2 and the regulations governing the specific type of relief
sought).141 The accrual of unlawful presence stops the date the application is properly filed, and continues if a denied application is renewed before the IJ and the BIA. However, except for NACARA and
HRIFA applications, the application must be filed affirmatively with USCIS. A defensive application
filed with the IJ will not be considered POSABAG. Unlawful presence resumes the day after the application is denied.142
132 8 CFR §245.1(d)(3).
133 AFM ch. 40.9.2(b)(3)(M); legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2–3 ( June 12, 2002), published on AILA InfoNet at
Doc. No. 02062040 (posted June 20, 2002); legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after 120day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 4 (Mar. 3, 2000), published on AILA InfoNet at
Doc. No. 00030774 (posted Mar. 7, 2000).
134 See legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
135 AFM ch. 40.9.2(b)(3)( J); legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2 ( June 12, 2002), published on AILA InfoNet at
Doc. No. 02062040 (posted June 20, 2002).
136 Immigration Reform and Control Act of 1986 (IRCA), Pub. L. 99-603, 100 Stat. 3359 (1986). In addition to the INA §245A program,
IRCA also contained a similar program for Cubans and Haitians. IRCA §202. Section 245A required an “entry” to the United States before
January 1, 1982. Since many Cubans and Haitians were paroled, they would not have qualified under INA §245A, since a parole is not an “entry.”
Cuban-Haitian adjustment applications are considered POSABAG through the administrative appeal. Legacy INS Memorandum, J. Williams,
“Unlawful Presence” at 2 ( June 12, 2002), published on AILA InfoNet at Doc. No. 02062040 (posted June 20, 2002).
137 Nicaraguan Adjustment and Central American Relief Act (NACARA) Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193–201 (1997).
138 Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), Pub. L. No. 105-277, div. A, §101(h), tit. IX (secs. 901–04), 112 Stat. 2681,
2681-538 to 2681-542.
139 AFM ch. 40.9.2(b)(3)(A).
140 Legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
141 AFM ch. 40.9.2(b)(3)(A); Treatment of Adjustment Application for Purposes of Determining Unlawful Presence under INA 212(a)(9)(B),
00 State 102272 (May 30, 2000), published on AILA InfoNet at Doc. No. 00060201 (posted June 2, 2000).
142 AFM ch. 40.9.2(b)(3)(A).
© 2010 American Immigration Lawyers Association. all rights reserved.
17
Inside Immigration
Applications for Temporary Residence Under INA §245A, SAW, and LIFE Act Legalization
Although registration for both programs ended over two decades ago, some undecided cases are
still pending. Moreover, several class actions challenging legacy INS regulations implementing the
INA §245A legalization program successfully extended the application period for discrete groups
of foreign nationals who failed to apply due to the invalid regulations.143 Legacy INS did not appeal the courts’ invalidations of the legalization regulations, but it did
appeal the judicial extension of a statutory deadline. The issue was litiAbout the Author
gated in the federal courts during most of the 1990s, including a trip to
(continued)
144
the U.S. Supreme Court in Reno v. Catholic Social Services, Inc. (CSS).
O’Connor has published
Eventually, the “late amnesty” issue was resolved legislatively in the LIFE
various articles and has
Act.145 The LIFE Act provided that members of the CSS, League of United
spoken at numerous
Latin American Citizens v. INS,146 and Zambrano v. INS147 classes should
national and regional
be afforded a new one-year application period in which to apply for legalconferences on immiization under INA §245A.148
USCIS has determined that SAW applicants under INA §210, applicants for legalization under INA §245A (including applicants under
any legalization-related class settlement), and applicants under the LIFE
Act are in a period of authorized stay as long as the application remains
pending.149 The legalization program provided that denied applications
were entitled to a single level of administrative appellate review with the
Administrative Appeals Office.150 If a denied application is appealed, the
period of authorized stay continues through the administrative appeals
process.151 Since a denied legalization application cannot be renewed before an IJ, USCIS asserts that “the period of authorized stay does not
continue through removal proceedings or while a petition for review is
pending in federal court.”152 While it is true that a denied application
cannot be renewed before an IJ, a denied application is subject to judicial
review of an order of deportation.153 Consequently, a foreign national who
seeks judicial review of a denial of a SAW or INA §245A application
pursuant to these provisions could argue that he or she was not accruing
unlawful presence.
gration law, including
presentations at the
AILA Annual Conferences
in 2007, 2009, and
2010; the National
Legal Aid & Defender
Association; the Federal
Bar Association; the
Indiana State Bar
Association; the Indiana
Public Defender Council;
and the Indiana Pro
Bono Commission. He
was recently selected to
serve as an immigration
judge in Los Angeles and
will take the bench in
December 2010.
143 The “late amnesty” cases were Catholic Social Services v. Meese, 956 F.2d 914 (9th Cir. 1992) (individuals who departed the United States
without advance parole from legacy INS after October 1986); League of United Latin American Citizens v. INS, 999 F.2d 1362 (9th Cir. 1993)
(LULAC) (individuals who established unlawful residence in the United States before January 1, 1982, but briefly departed the country and reentered using a visa between January 1, 1982, and October 1986); and Zambrano v. INS, 972 F.2d 1122 (9th Cir. 1992) (challenging legacy INS’s
public charge regulations).
144 Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993).
145 LIFE Act Amendments of 2000, Pub. L. No. 106-554, appx. D, div. B, §§1501–06, 114 Stat. 2763, 2763A-324–28.
146 LULAC, 999 F.2d 1362.
147 Zambrano, 972 F.2d 1122.
148 See LIFE Act §1104.
149 AFM ch. 40.9.2(b)(3)(E); see also legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after 120-day
tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 3 (Mar. 3, 2000), published on AILA InfoNet at
Doc. No. 00030774 (posted Mar. 7, 2000); legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2 ( June 12, 2002), published on AILA
InfoNet at Doc. No. 02062040 (posted June 20, 2002). There should not be any temporary residents under the SAW or LIFE Legalization programs. SAWs adjusted by operation of law on December 1, 1990 (see INA §210(a)(2)(B); 8 CFR §210.5(a)(2)), and the LIFE Legalization program bypassed the temporary residence stage for eligible applicants. See LIFE Act §1104(c).
150 INA §§210(e)(2), 245A(f )(3); 8 CFR §§210.2(f ), 245a.2(p), 245a.3(j), 245a.20(a)(2).
151 AFM ch. 40.9.2(b)(3)(E); legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2 ( June 12, 2002), published on AILA InfoNet at
Doc. No. 02062040 (posted June 20, 2002); legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after 120day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 3 (Mar. 3, 2000), published on AILA InfoNet
at Doc. No. 00030774 (posted Mar. 7, 2000).
152 AFM ch. 40.9.2(b)(3)(E).
153 INA §§210(e)(3), 245A(f )(4).
18
© 2010 American Immigration Lawyers Association. all rights reserved.
Determining Unlawful Presence
Voluntary Departure
A grant of voluntary departure also constitutes POSABAG. At first, legacy INS indicated that
foreign nationals granted voluntary departure accrued unlawful presence.154 The agency soon reversed
itself, however, and concluded that voluntary departure constitutes POSABAG.155 Unlawful presence
stops on the date a foreign national is granted voluntary departure, resuming the day after voluntary
departure expires if the foreign national fails to timely depart the United States.156 If an IJ’s denial of
voluntary departure is reversed on appeal, the time from the denial to the reversal will be considered
an authorized stay.157 Voluntary departure does not cure any unlawful presence that accumulated
before the grant.158
Stay of Removal
Since a stay of removal prevents DHS from executing any outstanding order of removal, USCIS
reasons that a foreign national granted a stay of removal does not accrue unlawful presence during
the period of the grant of stay of removal. Moreover, unlawful presence does not accrue even if the
stay is automatic, such as when a foreign national files a motion to rescind an in absentia removal
order under INA §240(b)(5)(C).159
Satisfactory Departure
The regulations authorize DHS to grant a period of satisfactory departure to foreign nationals
admitted under the Visa Waiver Program if an emergency prevents the foreign national from departing within the period of authorized stay.160 Unlawful presence will not accrue if a foreign national
obtains a grant of satisfactory departure and departs within the satisfactory departure period. If the
foreign national remains after the expiration of the satisfactory departure period, unlawful presence
will begin to accrue the day after the satisfactory departure period expires.161 As with deferred action
status and voluntary departure, the agency initially declared that a grant of satisfactory departure was
not a period of authorized stay.162
Categories Not Considered POSABAG
USCIS and legacy INS also have identified several categories not considered to be authorized stay.
For example, release on an order of supervision is not considered an authorized period of stay.163
While the statute exempts applications for asylum and extension or change of status, and the agen154 Legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
155 See legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2 ( June 12, 2002), published on AILA InfoNet at Doc. No. 02062040
(posted June 20, 2002); legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after 120-day tolling period for
purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 3 (Mar. 3, 2000), published on AILA InfoNet at Doc. No. 00030774
(posted Mar. 7, 2000); letter from B. Cooper, legacy INS General Counsel, to R. Klasko and D. Buffenstein (Dec. 10, 1999), published on AILA
InfoNet at Doc. No. 99122271 (posted Dec. 22, 1999); legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B) Relating to Unlawful Presence”
(Sept. 19, 1997), published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 22, 1997).
156 AFM ch. 40.9.2(b)(3)(H); letter from B. Cooper, legacy INS General Counsel, to R. Klasko and D. Buffenstein (Dec. 10, 1999), published on
AILA InfoNet at Doc. No. 99122271 (posted Dec. 22, 1999); legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B) Relating to Unlawful
Presence” (Sept. 19, 1997), published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 22, 1997).
157 AFM ch. 40.9.2(b)(3)(H).
158 Legacy INS Memorandum, M. Pearson, “Period of stay authorized by the Attorney General after 120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act” at 5 (Mar. 3, 2000), published on AILA InfoNet at Doc. No. 00030774 (posted Mar. 7,
2000).
159 AFM ch. 40.9.2(b)(3)(I).
160 See 8 CFR §217.3(a).
161 AFM ch. 40.9.2(b)(3)(N).
162 See legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
163 AFM ch. 40.9.2(b)(6); legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the
Immigration and Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
© 2010 American Immigration Lawyers Association. all rights reserved.
19
Inside Immigration
cy has exempted applications for adjustment of status and
temporary residence, unlawful presence attaches during the
time most other applications are pending. A pending application for non-LPR cancellation,164 TPS,165 Family Unity,166
or withholding of removal167 is not considered POSABAG.
As noted above, if TPS or Family Unity ultimately is granted, the period during which the application was pending will
be considered POSABAG. However, an applicant for withholding of removal continues to accrue unlawful presence
until the application is granted. If non-LPR cancellation is
granted, the foreign national becomes an LPR and previous unlawful presence is purged. Similarly, a pending or approved I-130 petition or application for labor certification is
not considered POSABAG, and does not by itself prevent
the foreign national from accruing unlawful presence under
INA §§212(a)(9)(B) or (C).168
Finally, litigation against the government is not, by itself,
POSABAG.169 Likewise, the pendency of removal proceedings is not POSABAG unless the foreign national is protected under some other ground.170 If the foreign national
is accruing unlawful presence once proceedings have commenced, the foreign national will continue to accrue unlawful presence unless some other basis stops it. If the foreign
national is not accruing unlawful presence, the initiation of
proceedings will not trigger unlawful presence until the IJ
determines that the foreign national has violated status, or
the foreign national’s authorized stay expires. For example,
if the government alleges that a foreign national has violated
nonimmigrant status, unlawful presence will not commence
until there is a final administrative order finding a violation.
However, if the foreign national’s authorized stay on Form
I-94 expires while proceedings are pending, the foreign national will begin to accrue unlawful presence the day after
the expiration of Form I-94.
inside
IMMIGRATION
Managing Editor
Adriana M. Sciortino
Deputy Managing Editor
Danielle Polen
Staff Editor Rizwan Hassan
Executive Editor Tatia L. Gordon-Troy
Editor-in-Chief Crystal Williams
Graphic Designer Bradley Amburn
Inside Immigration, published several
times annually, is an official publication
of the American Immigration Lawyers
Association, Suite 300, 1331 G Street, NW,
Washington, DC 20005
Copyright © 2010 American
Immigration Lawyers Association.
All rights reserved. No part of this
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Legal Disclaimer
AILA’s Inside Immigration articles do not
necessarily represent the views of AILA, nor
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Content Disclaimer
All Internet links contained within this article
were current as of the date of publication. When
referring to any citations, remember, the law can
change quickly, so always review the most current statutes, regulations, and case law.
164 Legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
165 AFM ch. 40.9.2(b)(3)(G); legacy INS Memorandum, J. Williams, “Unlawful Presence” at 2–3 ( June 12, 2002), published on AILA InfoNet at
Doc. No. 02062040 (posted June 20, 2002).
166 AFM ch. 40.9.2(b)(2)(D); legacy INS Memorandum, J. Williams, “Memorandum Regarding Family Unity Benefits and Unlawful Presence”
at 2 ( Jan. 27, 2003), published on AILA InfoNet at Doc. No. 03013042 (posted Jan. 30, 2003).
167 Legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
168 Matter of Briones, 24 I&N Dec. 355, 358 n.4 (BIA 2007); 8 CFR §§245.10(m), 1245.10(m); USCIS Memorandum, W. Yates, “Clarification
of Certain Eligibility Requirements Pertaining to an Application to Adjust Status under Section 245(i) of the Immigration and Nationality Act”
at 6 (Mar. 9, 2005), published on AILA InfoNet at Doc. No. 05031468 (posted Mar. 14, 2005) legacy INS Memorandum, R. Bach, “Accepting
Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality Act” (Apr. 14, 1999), published on AILA InfoNet
at Doc. No. 99042240 (posted Apr. 22, 1999).
169 Legacy INS Memorandum, P. Virtue, “Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and
Nationality Act” ( June 17, 1997), published on AILA InfoNet at Doc. No. 97061790 (posted June 17, 1997).
170 AFM ch. 40.9.2(b)(5); legacy INS Memorandum, P. Virtue, “Implementation of Section 212(a)(6)(A) and 212(a)(9) Grounds of Inadmissibility”
(Mar. 31, 1997), published on AILA InfoNet at Doc. No. 97033190 (posted Mar. 31, 1997); legacy INS Memorandum, P. Virtue, “Section 212(a)(9)(B)
Relating to Unlawful Presence” (Sept. 19, 1997), published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 22, 1997).
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