Unlawful Presence Hypotheticals

Hypothetical 1: Client enters U.S. as a B-2 on September 1, 1999 valid for six months. On November 1, 1999, she begins employment without obtaining permission from the INS.

Answer 1: The law defines ‘unlawful presence’ at section 212(a)(9)(B)(ii) as follows: “…an alien is deemed to be unlawfully present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled”. Here, your client was lawfully admitted into the U.S. and has not remained longer than her authorized stay. However, she is violating her tourist status by working. Per INS interpretation, status violators do not accumulate unlawful presence until either the INS or an Immigration Judge make a finding that the person has violated their status. The period of unlawful presence for a status violator begins on the date that the INS or the Immigration Judge makes a finding that they have violated their status.

• 222g No, not an overstay
• 219(a)(9) No, not EWI or overstay, no finding of failure to maintain status
• 245/248 Ineligible – failure to maintain status
• (245 – exception for immediate relatives)
• 245i Not ineligible
• 245k Not ineligible – not an overstay/status violator for more than 180 days
• 274 Unauthorized alien
• Removable Yes

Hypothetical 1A: What if client departs the U.S. on December 31, 1999 and returns as a B-2 on March 1, 2000?

Answer 1A: By departing the U.S. prior to accumulating 180 days of unlawful presence, and returning as a tourist, your client’s status becomes lawful again. Hence, she is no longer removable. However, she is still ineligible to adjust status under 245a (unless she is the immediate relative of a U.S. citizen) and is an unauthorized alien under 274.

Hypothetical 1B: What if client departs the U.S. on December 31, 1999 after being found removable by an Immigration Judge and has been given voluntary departure until March 1, 2000 and returns without inspection on January 1, 2000 after attending an all-night Millennium party in Mexico? Is she subject to the permanent bar of inadmissibility?

Answer 1B: The permanent bar of inadmissibilty under section 212(a)(9)(C) is inapplicable since your client left the U.S. under a grant of voluntary departure and not under an order of removal.

Hypothetical 2: Same scenario as Hypothetical #1 except that client departs the U.S. on October 1, 2000 after being found removable by an Immigration Judge. She leaves the U.S. during her authorized period of voluntary departure.

Answer 2: Per section 212(a)(9)(B)(i)(I), the three-year bar applies only to persons who were unlawfully present in the U.S. for more than 180 days and less than one year, and who voluntarily departed the U.S. ‘prior to commencement of proceedings’. Since your client overstayed more than 180 days, but less than one year, and did not depart prior to commencement of proceedings, the 3-year bar does not apply to her.

• 222g Yes, overstay
• 219(a)(9) No, the 3-year bar does not apply to one who departed after commencement of proceedings
• 245/248 Ineligible – failure to maintain status
• (245 – exception for immediate relatives)
• 245i Not ineligible
• 245k Ineligible, overstayed for more than 180 days
• 274 Unauthorized alien
• Removable Yes

Hypothetical 3: B-2 Canadian entered legally, but without an I-94, in 1995. She has overstayed and worked without authorization since 1996. She wants you to obtain an E-2 visa for her.

Answer 3: Canadians who lawfully enter the U.S., but who were not given I-94’s, are treated like status violators if they overstay or fail to maintain status. They do not accumulate unlawful presence, and the 3 and the 10-year bars do not apply, where neither the INS nor the Immigration Judge has made a determination that your client has violated her status.

• 222g No, not considered an overstay, no visa
• 219(a)(9) No, not EWI or overstay, no finding of failure to maintain status
• 245/248 Ineligible – failure to maintain status
• (245 – exception for immediate relatives)
• 245i Not ineligible
• 245k Ineligible, failure to maintain status for more than 180 days
• 274 Unauthorized alien
• Removable Yes

If your client re-enters the U.S. with an E-2 visa, she will cease to be ineligible for adjustment under 245k, will be an authorized alien under 274 and will no longer be removable.

Hypothetical 4: H-1B visa-holder applies for an extension of stay on September 1, 1999. She departs the U.S. on November 1, 1999 while the petition is pending.

Answer 4: Per Michael Pearson memo dated March 3, 2000, submitting a timely-filed, non-frivolous application for an extension or change of status tolls the period of unlawful status.

• 222g No
• 219(a)(9) No, timely filing of EOS tolls unlawful presence
• 245/248 Not ineligible
• 245i Not ineligible
• 245k Not ineligible
• 274 Authorized alien
• Removable No

Hypothetical 4A: What if client in Hypothetical #4 departs the U.S. on January 15, 2000 while her petition for an extension is still pending?

Answer 4A: Since your client timely-filed a non-frivolous application for extension of status, she does not begin to accumulate unlawful presence. Therefore, she is not subject to the 3-year bar.

Hypothetical 4B: What if client’s H-1B petition is denied on January 15, 2000, and her employer retains you to appeal the denial to the Administrative Appeals Office?

Answer 4B: Appealing the denial of a petition does not toll the period of unlawful presence. Therefore, unless your appeal is successful, you may subject your client to the 3 and the 10-year bars by appealing to the AAO. Be prepared to file a mandamus action.

Hypothetical 5: Client enters the U.S. as a B-2 in 1990, overstays and works without authorization. In 1995, she submits a Request for Asylum to the INS and obtains an EAD. Client retains you, and you obtain the approval of a labor
certification and visa petition on her behalf.

Answer 5: Per section 212(a)(9)(iii)(II), the pendency of a bona fide Request for Asylum prevents your client from accumulating unlawful presence unless during this period, she was employed without authorization.

• 222g Yes, an overstay
• 219(a)(9) No, bona fide Request for Asylum with no unauthorized employment during this period
• 245/248 Ineligible – overstay
• (245 – exception for immediate relatives)
• 245i Not ineligible
• 245k Ineligible – failure to maintain status for over 180 days.
• 274 Authorized alien
• Removable No

Hypothetical 5A: What is the standard for determining whether the Request for Asylum is bona fide?

Answer 5A: Request for Asylum is considered bona fide if it has “any arguable basis in law or fact”.

Hypothetical 5B: What if client in Hypothetical #5 applied for an EAD 91 days ago, and has continued working even though INS has failed to approve the EAD within the required 90 days.

Answer 5B: The INS interprets the law to mean that even one day of unauthorized employment renders the entire period (since April 1, 1997) that the Request for Asylum was pending “unlawful presence”.

Hypothetical 6: Your client is charged with being removable. You contest the charge. Will defending your client’s rights subject her to the inadmissibility bars?

Answer 6: Even though your client is required to remain in the United States in order to contest a charge of removability, the INS takes the position that this time constitutes unlawful presence. Failure to attend a removal hearing ‘without reasonable cause’ renders your client inadmissible for a period of 5 years under section 212(6)(B). However, if your hearing, and any appeals, are not concluded within 1 year, your client could become inadmissible for a period of 10 years under section 212(a)(9)(B)(I)(II). INS has informally agreed that undergoing proceedings is a ‘reasonable cause’ for departing the U.S. However, since EOIR has not yet agreed with this interpretation, an Immigration Judge could order an alien who has departed the U.S. removable in absentia, thereby subjecting her to a 10-year bar of inadmissibility.

Four years after the enactment of IIRAIRA, there are still no regulations interpreting section 212(a)(9).

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