UNLAWFUL PRESENCE

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 inadmissible.

Exceptions:

1. Minors -an alien under 18 years of age .
2. Asylees -an alien who has an application for asylum pending under section 208 unless they were employed without authorization .
3. Family Unity -an alien who is the beneficiary of family unity protection .
4. Battered women and children -an alien who would be described in paragraph (6)(A)(ii) if violation of the terms of the alien's nonimmigrant visa were substituted for unlawful entry into the United States in subclause (Ill) of that paragraph .

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.