Unlawful Presence and Admission to the U.S.
January 30th, 2009 by Brian D. Zuccaro
CIS recently provided updated guidance on unlawful presence and the effect of the individual’s subsequent admission to the U.S. on the running of the individual’s inadmissibility period under section 212 (a)(9)(B) of the INA.
Lynden Melmed, Chief Counsel, recently confirmed that the unlawful presence period under section 212 (a)(9)(B) begins as of the individual’s initial departure from the U.S.
More importantly, Lynden Melmed also confirmed that the unlawful presence period continues to run even if an individual is paroled or lawfully admitted to the U.S. pursuant to a waiver within the 3 or 10 year time bar.
For example, an individual could depart the U.S. and trigger a 10 year bar to reentry under unlawful presence provisions. If 5 years later that individual obtains a non-immigrant waiver and enters the U.S. under approved non-immigrant status, any time spent in the U.S. will count towards the overall 10 year bar. (e.g. an individual could be working in the U.S. in H-1B status and that time still counts towards the overall unlawful presence bar.)
Anyone with any unlawful presence issues should consult with an experienced immigration attorney before applying for a waiver or seeking entry to the U.S.
