Unlawful Presence and the 3/10 Year Bars

By: Aurora Vega-Buzon, Esq.

Regina from the Philippines and Sergio from Panama are both spouses of U.S. citizens with approved spouse petitions. Both have immigration histories - Regina came as a tourist in 2008 and overstayed for 10 months before going home in 2009; Sergio crossed the border in 2003 and worked in the U.S. for 4 years before finally going home in 2007. Both have been interviewed by the US embassies in their respective countries and have been denied immigrant visas as both have been, in the past, unlawfully present in the U.S.

Unlawful presence (ULP) is defined as (i) presence in the U.S. after the expiration of the period of stay authorized by the Secretary of Homeland Security (POSA), or any presence (ii) without being admitted or (iii) paroled. A person who crosses the border without inspection, like Sergio – commonly known as "EWI" - is unlawfully present from the date of arrival. A person "paroled" into the U.S. (a permanent resident returning from a trip abroad but who may be subject to inadmissibility and/or deportability because of crimes, or some defect in his permanent resident status; or some other non-immigrant who is only allowed to enter the U.S.) is not "admitted" in an authorized stay - and once the period of parole expires, will start to accumulate unlawful presence (ULP). Also, a conditional permanent resident who fails to file a petition to remove conditions accrues ULP from the day after his conditional status expires, unless a late petition is subsequently accepted and approved. Any person coming into the U.S. as a non-immigrant (tourists, persons with H-1B working visas, investors, L intra-company executives or managers, K1 fiancé/es, etc.) is given an I-94 which contains the period of authorized stay (POSA). A non-immigrant will accumulate ULP on the day after the I-94 expires. If an extension of stay or application for an immigration benefit is filed within the POSA, ULP will accrue the day after USCIS denies the extension or benefit.

ULP becomes important when people like Regina and Sergio seek any immigration benefit in the future. Regina is subject to the 3-year bar and will only get her immigrant visa in 2012 - 3 years after she left the U.S. Sergio is subject to the 10-year bar and will not get his immigrant visa until 2017, 10 years after he left the U.S.

Regina is inadmissible (not entitled to a visa or entry into the U.S.) because she is an "alien who was unlawfully present in the U.S. for a period of more than 180 days but less than 1 year. . . and who again seeks admission within 3 years of the date of such alien's departure or removal." Her ULP was more than 180 days but less than 1 year.

Victor's ULP is more than 1 year and is inadmissible as he was "unlawfully present in the U.S. for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal."

The 3/10-year bars apply only if the alien departs the U.S. – thus, the bars are triggered only if the person has over 180 days of ULP and then departs the U.S. If Regina remained in the U.S. and filed for adjustment application because of her marriage to a U.S. citizen, there is no 3-year bar as she did not depart the U.S.. However, in the case of Victor, if he remained in the U.S. and filed for adjustment because of marriage, he is still ineligible to get a green card as aside from his ULP, he is also an EWI – he entered without inspection.

Regina and Victor's spouses should consult an immigration attorney to find out if available waivers to waive the 3/10-year bars and shorten their wait to get their immigrant visas.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com
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