USCIS has released a Memorandum, dated May 6, 2009, from Donald Neufeld which consolidates prior guidance concerning unlawful presence in the United States. Please click here for the memorandum.
Unlawful Presence
Section 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (the “Act”) renders inadmissible aliens who were unlawfully present for more than 180 days but less than one (1) year, who voluntarily departed the U.S. prior to the initiation of removal proceedings and who seek admission within three (3) years of the date of such departure from the U.S. Similarly, Section 212(a)(9)(B)(i)(II) of the Act renders inadmissible aliens who were unlawfully present for one (1) year or more and who seek admission within ten (10) years of the date of the alien’s departure or removal. These are significant bars to entry to the U.S. and it is important to understand what unlawful presence is and the circumstances under which unlawful presence starts to accrue. Under the Act, unlawful presence can accrue during any period in which the alien is present in the United States without having been admitted, paroled or after the expiration of the period of stay authorized by the Secretary of Homeland Security.
Difference between Unlawful Status and Unlawful Presence
It is important to draw one very important distinction which, unfortunately, creates confusion (and often, unnecessary worry) among foreign nationals. Unlawful status and unlawful presence are related, yet separate concept (one must be in present in an unlawful status in order to accrue unlawful presence, but being in unlawful status alone does not necessarily mean that the 3/10 year bans are triggered).
Unlawful presence is defined in Section 212(a)(9)(B)(ii) of the Act to mean that an alien is deemed to be unlawfully present in the U.S. if the alien is (1) present after the expiration of the period of stay authorized by the Secretary of Homeland Security or (2) present without being admitted or paroled. On the other hand, unlawful status may mean a violation of a previously valid status.
For example, a F-1 student who drops out of school is said to be in unlawful status. However, the alien will not start accruing unlawful presence until immigration judge or USCIS makes a determination that the alien was out of status.
When Unlawful Presence Starts
The Memorandum describes some specific situations and provides some guidance on when exactly does the period of unlawful presence in the U.S. start. For Nonimmigrants Admitted until a Specific Date. Generally the unlawful presence starts on the day following the date the authorized period of admission expires, as noted on the Form I-94, Arrival/Departure Record. If USCIS finds, during the adjudication of a request for some immigration benefit, that the alien has violated his or her nonimmigrant status, unlawful presence will begin to accrue either the day after Form I-94 expires or the day after USCIS denies the request, whichever comes first. Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first.
Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated. Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. Similarly, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever comes first.
Note that accrual of unlawful presence does not begin on the date that a status violation occurs, nor does it begin on the day on which removal proceedings are initiated.
4 comments:
Does this May 09,2009 memo means that I have to renew my H1B? My 3year H1B expired in Sept 2008 and I used my EAD since Sept 2008 up to the present. And what about my dependents in my I485 application? Do they need to go back from AOS to H4? Our I485 has been pending since July 2007.
No, not at all
You & your dependents are on lawful presence as long your I-485 (AOS) is pending.
You need not extend your H-1B for this nor even H-4...
On Feb 23, 2011 I got denied a B2 visa at the US consulate in Kyiv, Ukraine on the grounds of Section 212(a)(9)(b)(I)(II)
Let me explain the background to my situation now...
In July of 2004 I was lawfully admitted to the US on an F1 student visa to go to a community college. Upon graduating from the college I transfered to university in July of 2006 (for which I obtained another F1 visa at a consulate in Kyiv with a D/S on my I-94). I successfuly completed my junior year but stopped attending school in September of 2007. I left the US on Jan 18 of 2009. I have never worked in the US, was never deported, never arrested and never tried to adjust my status.
I do not believe section 212(a)(9)(b)(I)(II) was applied fairly to me by the Consular officer, according to clause (b)(1)(E)(ii) of the Neufeld's Memo on Unlawful Presence.
What do I do about it?? Is there a way to appeal it or file a motion to reconsider to the consulate?
I'm sorry for that.
Can you let me know the following:
1. What were the questions asked by the consular officer in your B1 interview?
2. May I know what were you doing during the period from Sep, 2007 until Jan 18, 2009 (especially how were getting your moneies to live)
3. What documents did you provide to the consulate when you went for B2 visa interview and what specific purpose it was, was it for tourist or visitor?
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