What Happens To People Who Stay Unlawfully Present In The Country
When a person is unlawfully in the United States, it can lead
to the denial or inadmissibility of their visa application. Currently,
there are no rules that interpret the idea of unlawful presence; only
what is supplied by the Department of Homeland Security.
As it stands, any foreign national admitted into the U.S. is given a
non-immigrant visa or placed in parole status until a specific date. If
they stay beyond this date, they’re considered being unlawfully
present. The date of expiration is found on Form I-94. A
person who has not been inspected upon entering the country is also
considered unlawfully present.
1 - When A Foreign
National Stays Beyond The I-94 Form Date But Has A Pending Application
to Extend the Stay, Are They Considered Being Unlawfully Present?
There is no accruing of unlawful presence between the original I-94 and
application of stay extension approval, even when the I-94 has expired.
In fact, it’s retroactive to the expiration date. If denied,
however, it does accrue while the extension application is pending.
However, it must have been applied before the I-94 expired.
2 – Is It Possible To
Accrue Unlawful Presence Before The I-94 Expires?
The simple answer is “Yes”, and it happens when USCIS or immigration
judge concludes a status violation has taken place. For J-1
trainee and F-1 student visa holder, typically admitted into the
country for a duration of status, status violation is the only way they
are unlawfully present. Their I-94 will not have an
expiration date listed.
3 – When Will
Inadmissibility Occur?
A non-citizen is not admissible for three years if he/she is unlawfully
present for more than 180 days but less than 365 days (one
year). Now, the 180 days of being unlawfully present must
have been continuous. If they are here for 179 days, leave and come
back for another 179 days of being unlawfully present, they wouldn’t be
inadmissible based on it. 180 days, therefore, isn’t the same as six
months.
It’s important to be accurate in counting the unlawful presence days so
they don’t become barred from entering the country. The 10-year bar
stipulates that non-citizens cannot be admissible for 10 years if they
were unlawfully present for 12 months and looks to gain admission
within 10 years of their removal from the country.
Similar to the three-year bar, any unlawful presence must have taken
place in one single continuous stay. The permanent 10-year bar is
applied to non-citizens who have been illegally in the country for more
than 12 months and tries to constantly enter or get into the country
without going through inspections. Unlike the three and 10-year bars,
the date of unlawful presence is the total of all times the person was
unlawfully present.
For instance: a person who was unlawfully in the country for six
months, but left and came back for another six months and left again
and tried to get back into the country would be subjected to the
10-year ban.
The attorney general may relinquish the inadmissibility due to the
unlawful presence, and will waive it in cases where the non-citizen is
the immediate family of a U.S. citizen or legal resident and has
established the refusal of admission to a non-citizen as being undue
hardship on the citizen.
The 10-year permanent ban could be waived but only after 10 years from
the departure. The last 10 years must have been spent outside the
country, documenting their residency for verification during the waiver
application.