Unlawful Presence & Waiver of Inadmissibility

Section 212(a)(9)(B) of the Immigration and Nationality Act states that any non-U.S. citizen who enters the U.S. illegally or stays in the country longer than permitted and who then leaves the U.S. after more than 180 days of unlawful presence may not return for three years. An alien who departs after a year of unlawful presence may not return for 10 years.

To trigger the three-year bar, the 180 days must be consecutive. By contrast, short intervals of unlawful presence may, cumulatively, subject an alien to the 10-year bar. Exceptions are unlawful presence accrued before April 1, 1997, or before the alien’s 18th birthday.

The bar remains in force until the alien adjusts his or her status (i.e., becomes a permanent resident). Noncitizens who leave the U.S. after attaining a status, such as asylum or Temporary Protected Status, that in theory permits them to leave and come back could be unaware that leaving the U.S. may trigger either the three- or 10-year bar. Even if they are allowed back into the U.S., they must overcome the consequent inadmissibility when they later seek to adjust their status.

For example, an asylee who filed for asylum nine months after entering the U.S. and who illegally obtained a refugee travel document for travel to another country also must request a waiver of inadmissibility when he or she later files to adjust his or her status to permanent resident.

Those seeking admission or residency after triggering section 212(a)(9)(B) will need to either wait out the three or 10 years outside the U.S. or apply for a waiver of inadmissibility.

To even apply for such a waiver, the alien (unless he or she has asylum or refugee status) must have a parent or spouse who is a permanent U.S. resident or U.S. citizen. Moreover, to receive the waiver, the applicant must convince Citizenship and Immigration Services that this parent or spouse would suffer “extreme hardship” if the three- or 10-year bar were imposed. Hardship to the alien’s U.S. citizen or permanent-resident children does not count.

Last update: Sept. 25, 2008