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Unlawful Presence – The Negative Consequences of Illegal Stays in the U.S.

Summary of the Immigration and Nationality Act section 212(a)(9)(B)(i)


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Many illegal immigrants are unaware of the consequences of leaving the United States after accruing “unlawful presence” in the United States.  If you have been in the United States illegally and then leave the country, you may be prohibited from returning to the U.S. for several years, or barred permanently.  There are three potential bars for illegal aliens seeking readmission to the United States.

  1. Three-Year Ban: If you were in the country illegally for more than 180 days, but less than one year, and you left the U.S. voluntarily before any removal proceedings were instituted against you, you may be barred from returning for three years if you try to lawfully enter the United States within those three years.  (INA section 212(a)(9)(B)(i)(l)).
  2. 10-Year Ban: If you were in the U.S. illegally for one year or more and you leave, you may be barred from returning for ten years should you apply to come back to the U.S. on any valid immigrant or non-immigrant visa.  Note that the 10-year bar applies whether you were deported or you left voluntarily.  In contrast, the bar limited to three years requires that you leave voluntarily BEFORE deportation proceedings are initiated against you. (INA section 212(a)(9)(B)(i)(ll)).
  3. Permanent Ban: The permanent bar renders people inadmissible if he or she has been unlawfully present in the U.S. for an aggregate period of more than one year, and who enters or attempts to enter the U.S. without being admitted.  This means that if you come back illegally and are caught, you will be subject to the permanent bar to admission.  (INA section 212(a)(9)(C)(i)(l)).

Definition of Unlawful Presence



Unlawful presence is a period of unauthorized stay in the U.S.  Generally speaking, one starts to accrue unlawful presence on the day after the expiration date stated on the I-94 arrival/departure record.  One is also considered unlawfully present if he or she enters unlawfully without being formally admitted through a port of entry.

One must actually leave the U.S. to trigger any of the three bars mentioned above.  Ironically, this actually encourages those here unlawfully to remain in the United States, rather than leave and risk triggering the bar to later admission.

Please be aware that there are exceptions and waivers available under limited circumstances.  As such, it is important to contact an immigration lawyer if you are currently unlawfully present, or previously spend time, unlawfully present in the U.S.

Guest Post by Yasmin Kayiran:

Los Angeles Immigration Lawyer, Yasmin Kayiran helps people in the United States and abroad with professional immigration law services. Attorney Kayiran has traveled extensively and has spent time studying and living in both Turkey and the Netherlands, giving her a true understanding of other people and cultures. Yasmin has dedicated her law practice to providing her clients with the legal guidance they need and the personal attention they deserve.

She can be contacted at (323) 370-6136 or by email at ykayiran@yklawoffices.com.