Updated: Mar 2, 2021
When the U.S. Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRARA) of 1996, a provision was included that ostensibly would incentivize foreign nationals to leave the United States before their authorized period of stay expired. Basically (with some exceptions), anyone who overstayed would be penalized once they did finally depart, or subject to deportation and removal if they remained in the country. This new penalty for anyone who stayed in the country without authorization for more than 180 days was onerous, and remains in effect today. Depending on the circumstances, there is a 3-year, 10-year and permanent bar to re-entry. Per the Department of Homeland Security (DHS):
"Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a 'period of stay authorized by the Secretary.' You may be barred from being admitted to the United States for:
Three years, if you depart the United States after having accrued more than 180 days but less than one year of unlawful presence during a single stay and before removal proceedings begin;
10 years, if you depart the United States after having accrued one year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or
Permanently, if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States."
Not surprisingly, this attempt to get people to leave on time has failed spectacularly. A large number of noncitizens who entered the United States, with or without documentation, have accrued more than 180 days of unlawful presence and have remained for years, sometimes decades, to avoid triggering the bars. The irony of this ill-advised provision is that these noncitizens, many of whom might otherwise have traveled back to their home countries, have stayed in the United States because of the 3- and 10-year bars.
The most severe penalty is imposed on noncitizens who depart after accruing more than one year of unlawful presence and then try to re-enter, successfully or not, without permission. This triggers a permanent bar to admissibility. The DHS says that:
"If you are an alien and you are not a lawful permanent resident of the United States, you may be inadmissible forever under INA 212(a)(9)(C)(i)(I) if:
You accrued an aggregate period of more than one year of unlawful presence in the United States on or after April 1, 1997, and then departed the United States or were removed from the United States; and
You entered or attempted to reenter the United States on or after April 1, 1997, without a DHS officer admitting or paroling you into the United States.
“Aggregate period” means the total number of days of unlawful presence that you accumulated during all of your stays in the United States combined.
If the permanent unlawful presence bar applies to you, you will be permanently ineligible to:
Receive an immigrant or a nonimmigrant visa to come to the United States;
Adjust your status in the United States to that of a lawful permanent resident (Green Card holder); or
Be admitted to the United States at a port of entry."
President Joe Biden and others who helped draft the Citizenship Act of 2021 recognize that these penalties certainly have not accomplished their intended goal of deterring people from unlawfully living in the United States. Quite the opposite: countless noncitizens have not gone home in years, even when family members are sick or dying, or grandparents want to meet their grandchildren, because they know they cannot return to their homes and jobs and their families living in the United States. Under this proposed Act, to promote family unity, the 3-year, 10-year and permanent bars would be repealed.
3-YEAR, 10-YEAR BAR - INA 212(a)(9)(B)(i)(I) and (II)
The 3-year and 10-year bars are relatively straightforward: unless you file for an extension of your stay, you must leave on time. If you stay more than 180 days longer than authorized, you can't come back for 3 years. The penalty increases to 10 years if you overstay more than 1 year. Here's a relevant section of the law.
Section 212(a)(9)(B)(i) and Section 212(a)(9)(C)(i)(l) of the Immigration and Nationality Act (INA)
(A) Section 212(a)(9)(B)(i) of the Act- The 3-Year and the 10-Year Bars. Section 212(a)(9)(B)(i) is broken into two (2) sub-groups:
• Section 212(a)(9)(B)(i)(l) of the Act (3-year bar). This provision renders inadmissible for three (3) years those aliens, who were unlawfully present for more than 180 days but less than one ( 1) year, and who departed from the United States voluntarily prior to the initiation of removal proceedings.
• Section 212(a)(9)(B)(i)(ll) of the Act (1 0-year bar). This provision renders inadmissible an alien, who was unlawfully present for one (1) year or more, and who seeks again admission within ten (1 0) years of the date of the alien's departure or removal from the United States.
Both bars can be waived pursuant to section 212(a)(9)(B)(v) of the Act.
Example 1. AJ, a 24-year-old citizen of the UK, was issued a 10-year, multiple entry B2 visitor's visa by the U.S. Embassy in London. He entered in New York City and was given a six month period of admission. He did not get an actual I-94 card that would show his authorized period of admission, but was told that he could go online to print out a copy. AJ had a great visit, and before he knew it, the time had come for him to return to the UK. In fact, once he started calculating the date based on the entry stamp in his passport, he realized that he had actually been in the country for seven months, 30 days longer than he was authorized to stay. He quickly bought a plane ticket and left.
But the damage was already done on the first day of his overstay. It is true that, because AJ only accrued 30 days of unlawful presence, this is less than 180 days, and so he will not be subject to the 3-year bar to reentry. However, because he overstayed, AJ's 10-year multiple entry visa may be revoked. This means that he may have to apply for a new visitor's visa if he wants to travel to the United States in the future, and because of his overstay, the Department of State may deny his application. And even though he is a UK citizen, he may not be granted visa waiver if his 10-year multiple entry visa is revoked.
Consular officers have complete discretion over whether or not to issue a nonimmigrant visitor's visas. Therefore, AJ potentially could be permanently barred from traveling to the United States ever again as a visitor. All because he overstayed his visa for 30 days. The lesson, of course, is to never overstay a visa. The above is an extreme example, but it can happen.
FORM I-539 APPLICATION TO EXTEND/CHANGE NONIMMIGRANT STATUS
The easiest way to avoid such dire consequences was for AJ to leave the country before his period of admission expired. But if he wanted to stay longer, before his 6-month stay expired, AJ should have filed a Form I-539 application with USCIS to extend his stay. Generally, nonimmigrant visitors may be eligible to apply for an extension of their authorized period of stay if:
They are currently in the United States with a nonimmigrant visa;
Their nonimmigrant visa status remains valid;
They have not committed any crimes that make them ineligible for a visa;
They have not violated the conditions of their admission; and
Their passport is valid and will remain valid for the duration of their stay.
The date the authorized period of stay expires should be written or stamped on Form I-94, Arrival/Departure Record. If the visitor was not issued an I-94, or has lost the card, or the "admit until date" is not on the I-94, he or she can print out a duplicate copy using this Customs and Border Protection (CBP) link.
So long as AJ files a Form I-539 to extend his B-2 visa, and he does not engage in unauthorized employment or otherwise violate the terms of his visitor's visa, he will not accrue unlawful presence if the I-539 is approved. If it is denied, however, the unlawful presence will begin on the day after his "admit until date" expires. Below is an edited excerpt from a USCIS Interoffice Memorandum explaining the I-539 process:
(4) Requirements for Period of Stay Authorized by the Attorney General with Respect to Pending Change of Status (C/S) and Extension (E/S) Applications.
(A) The [I-539] application for change of status or for extension of stay was filed timely. To be considered timely, the application must have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1 (c)(4) and 8 CFR 248.1 (b).
(B) The noncitizen did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and
(C) The change of status or extension application has been pending with the Service for more than 120 days after the date the I-94 expired.
(5) Effect of Decision on Unlawful Presence and Tolling.
(A) Approved Applications. If the Service approves an E/S or C/S application, the noncitizen will be granted a new period of stay authorized by the Attorney General, retroactive to the date the previously authorized stay expired, as applicable to the nonimmigrant classification under which the noncitizen was admitted pursuant to 8 CFR 214.2. No unlawful presence accrues. This applies to noncitizens admitted until a specific date and noncitizens admitted D/S.
(B) Denied applications.
(i) Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment. If the timely filed C/S or E/S application is denied because it was frivolous or because the noncitizen engaged in unauthorized employment, any and all time after the Form I-94 expiration date will be considered unlawful presence, if the noncitizen was admitted until a specific date. If, however, the noncitizen was admitted D/S, unlawful presence begins accruing on the date of the Service’s decision.
(ii) Denial of Untimely Applications. If the application was untimely and was denied, unlawful presence begins accruing on the date the I-94 expired, regardless of the reason for denial. For noncitizens admitted D/S, unlawful presence begins accruing on the date of denial.
There is no guarantee that USCIS will grant an I-539 application to extend a nonimmigrant status. If at all possible, it is always best for a visitor to return before the authorized stay expires. But visitors who have to stay beyond that date should always file the I-539 as early as possible.
Example 2. The same scenario as Example 1 above, but instead of only 30 days, AJ remains in the United States 200 days beyond his authorized stay before he returns to the UK. Once AJ leaves the country, the 3-year bar to admissibility is triggered, and his 10-year B-2 visa is cancelled. The 3-year bar applies because AJ has accrued more than 180 days, but less than one (1) year, of unlawful presence, and departed voluntarily prior to the commencement of removal proceedings. The end result is that without a waiver, he cannot travel back to the United States for 3 years.
Example 3. The same scenario as Example 1 above, but in this example, AJ overstays even longer, more than one year beyond his authorized stay. When AJ, leaves, the provisions of the INA render him inadmissible if he seeks admission within 10 years of the date he departed the county, because he was unlawfully present for one (1) year or more. Just as in Example 2, he will need a waiver if he wants to return to the United States before the 10 year period is reached.
PERMANENT BAR - INA 212(a)(9)(C)(i)(I)
(B) Section 212(a)(9)(C)(i)(l) of the Act- The Permanent Bar. This provision renders an individual inadmissible, if he or she has been unlawfully present in the United States for an aggregate period of more than one ( 1) year, and who enters or attempts to reenter the United States without being admitted. A noncitizen, who is inadmissible under section 212(a)(9)(C)(i)(l) of the Act is permanently inadmissible; however, after having been outside the United States for at least ten (10) years, he or she may seek consent to reapply for admission pursuant to section 212(a)(9)(C)(ii) of the Act and 8 CFR 212.2 (Form I-212).
Example 1. Hugo is from Guatemala. When he was 25 years old, he joined a group that crossed the U.S. border illegally. After working for 2 years, he returned home to visit his ailing mother, then came back into the US. after 6 months. He never encountered any border patrol agents either time he entered, and there is no record of his traveling back and forth. He is still living and working in the U.S. Because Juan re-entered the country without inspection after accruing more than 1 year of unlawful presence, he is subject to the permanent bar. The bar will be triggered if he leaves the country again.
Example 2. Camila was 17 when she came into the U.S. illegally with her parents. At age 20, Immigration and Customs Enforcement (ICE) raided the factory where she worked, and she was deported. A year later, she came back in through Mexico, and she has remained in the U.S. ever since. Because she was a minor, the time between her 17th and 18th birthday does not count towards unlawful presence. However, because she still accrued more than 1 year after her 18th birthday, and she re-entered illegally after she was deported, she is subject to the permanent bar. If she is deported for the second time, she may be facing a 20-year re-entry bar.
These are just two of hundreds of examples. Decisions in immigration law are very dependent on facts as applied to the law, and so it cannot be stressed enough how important each and every step of a person's immigration journey could have a positive--or negative--effect on the outcome of their case. If you believe you are subject to the 3-year, 10-year or permanent bar, I encourage you to book an online consultation with me so that I can review your case and determine whether there is any relief available to you.
And I will post updates to the U.S. Citizenship Act of 2021 as it winds its way through the Congress, as well as any actions that President Biden takes via Executive Order.
WAIVERS AND PERMISSION
In my next blog post, I will discuss Form I-601, Form I-601A waivers of unlawful presence, and Form I-212 Request for Permission to Reapply for Admission after a permanent bar.