Unlawful presence is defined as when
any alien is "present in the United States after expiration of the
period of stay authorized by the Attorney General or (being) present
in the United States without being admitted or paroled." Section
2l2(a)(9)(B) of the Immigration and Nationality Act, as amended,
states that any alien was unlawfully present in the United States
for a period of more than 180 days but less than 1 year, voluntarily
departed the United States prior to the commencement of proceedings
under section 235(b)(1) or section 240, and again seeks admission
within 3 years of the date of such alien's departure or removal, or
has been unlawfully present in the United States for one year or
more, and who again seeks admission within 10 years of the date of
such alien's departure or removal from the United States, is
The penalty for someone who is unlawfully present
concerns bars to admission to the United States. For purposes of
determining eligibility for future admissions, those aliens who have
been unlawfully present for more than 180 continuous days (as of
Apri11, 1997), but less than one year prior to initiation of removal
proceedings, are barred from admission the United States for three
years from the date of departure. When someone has one year or more
of unlawful presence, the bar is ten years.
Section 212 (a)(9) of the INA was effective April I, 1997.
For example, someone who is unlawfully present
from January 1 to June 1, 1997, would have only accumulated two
months of unlawful presence, since the time was not counted until
April!, 1997. Prior unlawful presence does not count toward the bar.
Another example, a student's application for
reinstatement is denied on December 1, 1999 and the NTA has not been
issued. The student stays in the United States until July 1, 2000.
This student has been unlawfully present for more than 180
continuous days, but less than one year prior to initiation of
removal proceedings. The student is subject to inadmissibility to
the United States for three years from the date of departure.
Departure from the US triggers the bar.
Therefore, someone who is here in unlawful presence, but does not
depart the United States will not have the bars imposed. However,
should that person ever have to leave the United States and try to
return, the bars would be imposed.