Answers to Unlawful
Presence Hypotheticals
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(1) The law defines 'unlawful presence' at section 212(a)(9)(B)(ii)
as follows: '..an alien is deemed to be unlawfully present in the
United States after the expiration of the period of stay authorized
by the Attorney General or is present in the United States without
being admitted or paroled'. Here, your client was lawfully admitted
into the U.S. and has not remained longer than her authorized stay.
However, she is violating her tourist status by working. Per INS
interpretation, status violators do not accumulate unlawful presence
until either the INS or an Immigration Judge make a finding that the
person has violated their status. The period of unlawful presence
for a status violator begins on the date that the INS or the
Immigration Judge makes a finding that they have violated their
status.
222g No, not an overstay
219(a)(9) No, not EWI or overstay, no finding
of failure to maintain status
245/248 Ineligible - failure to maintain status
(245 - exception for immediate relatives)
245i Not ineligible
245k Not ineligible - not an overstay/status
violator for more than 180 days
274 Unauthorized alien
Removable Yes
(1A) By departing the U.S. prior to accumulating 180 days of unlawful
presence, and returning as a tourist, your client's status
becomes lawful again. Hence, she is no longer removable.
However, she is still ineligible to adjust status under 245a
(unless she is the immediate relative of a U.S. citizen) and
is an unauthorized alien under 274.
(1B) The permanent bar of inadmissibilty under section 212(a)(9)(C) is
inapplicable since your client left the U.S. under a grant of
voluntary departure and not under an order of removal.
(2) Per section 212(a)(9)(B)(i)(I), the three-year bar applies only
to persons who were unlawfully present in the U.S. for more than
180 days and less than one year, and who voluntarily departed
the U.S. 'prior to commencement of proceedings'. Since your
client overstayed more than 180 days, but less than one year,
and did not depart prior to commencement of proceedings, the
3-year bar does not apply to her.
222g Yes, overstay
219(a)(9) No, the 3-year bar does not apply to one who departed
after commencement of proceedings
245/248 Ineligible - failure to maintain status
(245 - exception for immediate relatives)
245i Not ineligible
245k Ineligible, overstayed for more than 180 days
274 Unauthorized alien
Removable Yes
(3) Canadians who lawfully enter the U.S., but who were
not given I-94's, are treated like status violators
if they overstay or fail to maintain status. They
do not accumulate unlawful presence, and the 3 and
the 10-year bars do not apply, where neither the INS
nor the Immigration Judge has made a determination
that your client has violated her status.
222g No, not considered an overstay, no visa
219(a)(9) No, not EWI or overstay, no finding of failure
to maintain status
245/248 Ineligible - failure to maintain status
(245 - exception for immediate relatives)
245i Not ineligible
245k Ineligible, failure to maintain status for more
than 180 days
274 Unauthorized alien
Removable Yes
If your client re-enters the U.S. with an E-2 visa, she
will cease to be ineligible for adjustment under 245k,
will be an authorized alien under 274 and will no longer
be removable.
(4) Per Michael Pearson memo dated March 3, 2000, submitting
a timely-filed, non-frivolous application for an extension
or change of status tolls the period of unlawful status.
222g No
219(a)(9) No, timely filing of EOS tolls unlawful presence
245/248 Not ineligible
245i Not ineligible
245k Not ineligible
274 Authorized alien
Removable No
(4A) Since your client timely-filed a non-frivolous application
for extension of status, she does not begin to accumulate
unlawful presence. Therefore, she is not subject to the
3-year bar.
(4B) Appealing the denial of a petition does not toll the period
of unlawful presence. Therefore, unless your appeal is
successful, you may subject your client to the 3 and the
10-year bars by appealing to the AAO. Be prepared to file
a mandamus action.
(5) Per section 212(a)(9)(iii)(II), the pendency of a bona fide
Request for Asylum prevents your client from accumulating
unlawful presence unless during this period, she was employed
without authorization.
222g Yes, an overstay
219(a)(9) No, bona fide Request for Asylum with no
unauthorized employment during this period
245/248 Ineligible - overstay
(245 - exception for immediate relatives)
245i Not ineligible
245k Ineligible - failure to maintain status for
over 180 days.
274 Authorized alien
Removable No
(5A) Request for Asylum is considered bona fide if it has “any
arguable basis in law or fact”.
(5B) The INS interprets the law to mean that even one day of
unauthorized employment renders the entire period (since
April 1, 1997) that the Request for Asylum was pending
'unlawful presence'.
(6) Even though your client is required to remain in the
United States in order to contest a charge of removability,
the INS takes the position that this time constitutes unlawful
presence. Failure to attend a removal hearing 'without
reasonable cause' renders your client inadmissible for a period
of 5 years under section 212(6)(B). However, if your hearing,
and any appeals, are not concluded within 1 year, your client
could become inadmissible for a period of 10 years under
section 212(a)(9)(B)(I)(II).
INS has informally agreed that undergoing proceedings is a
'reasonable cause' for departing the U.S. However, since
EOIR has not yet agreed with this interpretation, an
Immigration Judge could order an alien who has departed
the U.S. removable in absentia, thereby subjecting her to
a 10-year bar of inadmissibility.
Four years after the enactment of IIRAIRA, there are still no
regulations interpreting section 212(a)(9). The various INS and
State Department memoranda and cables interpreting unlawful
presence and related subjects are available on the Internet under
Analysis of 1996 Laws - Entitlement Bars and Section 245(i) .
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