In changes to the immigration laws in 1996, called The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a new concept was introduced in immigration law called “unlawful presence.” The concept came into force on April 1, 1997, when the reforms came into effect – or so we thought. We thought unlawful presence before April 1, 1997, would not have immigration consequences. For the immigration agencies to figure out what it meant – Congress did not define it – took years, much confusion, and many policy memos. Unlawful presence was not the same as being in status or lawful status or lawful nonimmigrant status, or here with the authorization of the government or …. It is not a common sense concept. A person can be out of status and not unlawfully present. A person can have unlawful presence but be allowed to work. Differentiating between these concepts is something that Alabama, Arizona, and Georgian police must now know all about because state laws criminalize being out of some or other of these. When they figure it all out, they can then clarify it for the rest of us – and the courts, which do not agree on the meaning and impact of these concepts, as discussed here.
The effect of unlawful presence is harsh. If an alien accrues 180 days of unlawful presence and departs the United States, he or she cannot come back for three years. If the person accrues one year of unlawful presence and departs the United States, he or she cannot come back for ten years. The bars, found at INA § 212(a)(9)(B), affectionately called the 3 and 10 year bars, respectively, cause all kinds of hardship for people who must leave the country to get visas, as their departing to get their visas results in their inadmissibility. There is a waiver based on extreme hardship to a citizen or permanent resident spouse or parent, but without the qualifying relative or if the requisite hardship is not found, the person who left to get the visa faces a bar to re-entry to the United States for three or ten years. Ironically, it is departing the United States which creates the bar. It is ironic because the law creates a disincentive to departing and you would think immigration laws would encourage the undocumented to depart the country, not to stay here.
There are exceptions to the 3 and 10 year bars. The most common ones are for minors and asylum applicants. The exception for children plays out such that if a child needs to get a visa abroad, as long as the child leaves the United States before he or she turns 18 years and 181 days old, he or she is not subject to the 3 year bar. If he or she leaves before he or she turns 19, he or she is not subject to the 10 year bar. It should be noted that the 180 days or one year of unlawful presence are not cumulative – that is the alien needs to have 180 days or a year in the United States without interruption to accrue the unlawful presence. Thus, if a person accrues 179 days and leaves and then is able to be re-admitted to the United States, the 180 day and one year clocks re-set to zero.
That is not the worst of the unlawful presence problems. At INA § 212(a)(9)(c), there are other bars. If an alien accrues a year of unlawful presence and departs the United States and then comes back without being admitted at a border, the person is barred from getting a visa until he or she stays out of the country for ten years. INA § 212(a)(9)(C)(i)(I). The State Department affectionately calls this the “permanent bar.” After ten years, the alien then must seek special permission to come back to the United States. The same bar applies to a person who is deported and then comes back without permission. INA § 212(a)(9)(C)(i)(II). Unlike the 212(a)(9)(B) bar, the accrual of the one year of unlawful presence is cumulative. Thus, if an alien overstays a visa for two months six times, and the person then comes into the United States without being inspected, the person faces the permanent bar.
Exceptions for minors and asylees at 212(a)(9)(B) also do not apply to 212(a)(9)(C). Thus, if a parent took an infant child into the United States for a couple of years, and for at least a year of that period the child was unlawfully present, and then returned abroad, and then took the child back into the United States when the child was 10 years old, and then child then leaves at age 17 to get a visa, this child is barred from obtaining a visa under the permanent bar because he accrued more than a year of unlawful presence, departed, and then returned without being admitted when he was 10 years old.
Understanding these statutes is a chore for aliens, their attorneys, the agencies involved, and the courts. For a more up-to-date discussion, see a more recent posting: