Persons who were unlawfully present in the United States for over 180 days but less than one year, and who subsequently depart the United States voluntarily prior to commencement of removal proceedings, are inadmissible for three years. Persons who were unlawfully present in the United States for one year or more, and who subsequently depart the United States are inadmissible for ten years.

The Immigration and Naturalization Service (INS) has advised that the following rules be applied in determining whether a person is considered to be "unlawfully present:"

1. No period of time prior to April 1, 1997, counts toward "unlawful presence"

2. For Entrants Without Inspection (EWI), unlawful presence begins the day the person enters without admission or parole.

3. A person admitted for "duration of status" will only be unlawfully present if either:

   • An Immigration Judge (IJ) finds the person has violated status and is excludable, deportable, or removable.
   • The INS, in the course of adjudicating an application for benefit, determines that a status violation has occured.

    

4. A person admitted until a certain specified date will become unlawfully present when:

   • The date on the I-94 (or any extension) has passed.
   • The INS or an IJ makes a finding of status violation.

    

5. Except in cases where the alien either entered without inspection (EWI) or stayed beyond the date specified on the I-94 (over-stay), consular officers may not refuse an alien under 9B unless the INS or an IJ has made a formal finding that the person violated status. Other than in overstay or EWI cases, a consular officer's belief that a particular person violated status is not in itself a sufficient basis for a 9B refusal. Even if the person admits to an apparent status violation (other than an overstay or EWI), that would not be a basis for a 9B finding without a prior INS or IJ finding of a status violation. On the other hand, a finding by a consular officer that the person entered without inspection or overstayed a specified date on the I-94 may be a proper basis, in and of itself, for a 9B refusal, assuming the alien had accrued the required period of unlawful presence. No prior INS or IJ finding is requried in such cases.

6. If the INS or an IJ finding determines a person is in violation of status, the clock starts to run from the date of the INS or IJ dermination, NOT from the date on which the person actually began violating status.

7. The INS has decided that a grant of "voluntary departure" constitutes a period of authorized stay for 9B purposes. The period between the date of the voluntary departure order and the date by which the alien must depart does not count toward any period of "unlawful presence." However, if the alien fails to depart by the date specified in the voluntary departure order, the clock starts counting.

8. Periods of "unlawful presence" under 9B are not counted in the aggregate.

In determining whether an alien has been "unlawfully present" for 9B purposes, posts should normally consider information available from the visa application process, post records, and make the class lookout system. Posts should not make routine requests for record checks from the INS or the Department, as arrival/departure records and records of authorization extensions or changes of status are not always complete or readily accessible.

Piece of cake, eh? Sorry about the mess, but that's what they've given us! Stay tuned to usvisanews for more information!