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Published: 2008-03-26

INS Reinterprets Unlawful Presence Again, Ameliorates Provisions for Some Employees



The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") provides bars for re-entering the United States if a foreign national has been in the United States in unlawful presence. For example, if a foreign national remains in the United States past the expiration of his/her authorized stay, he/she may be barred from re-entering the United States. Foreign nationals must be careful to avoid unlawful presence. Employers should be aware of the problems associated with unlawful presence so that their employees may remain in the United States.

A September 16, 1997, memorandum from INS Acting Executive Associate Commissioner, Paul Virtue, discusses the new INS interpretations of unlawful presence. The memo addresses: (1) voluntary departure; (2) authorized period of stay for nonimmigrants; (3) time spent in proceedings; (4) parolees; and (5) conditional permanent residents.

Voluntary Departure. With respect to voluntary departure, the INS has reversed its earlier interpretations of unlawful presence. Voluntary departure is now considered to be a period of stay authorized by the Attorney General, regardless of whether it is granted by the INS prior to the commencement of proceedings, by an immigration judge at the end of proceedings, or by the Board of Immigration Appeals after an appeal. If an alien does not comply with the terms of the voluntary departure order, he/she will not only begin accruing unlawful presence, but also face severe penalties under the voluntary departure provision of law. Pursuant to § 240B(d), an alien who fails to comply with an order permitting voluntary departure will be subject to a civil monetary penalty of no less than $1,000, and no more than $5,000, and will be ineligible for any further grant of voluntary departure for ten years.

Nonimmigrants. As for the authorized period of stay for nonimmigrants, the latest guidance provides that unlawful presence includes only periods of stay in the U.S. beyond the date noted on the alien's Form I-94 Arrival/Departure Record. Unlawful presence does not begin to accrue from the date of a status violation (including unauthorized employment). However, unlawful presence may begin to accrue before the expiration date noted on Form I-94 in two circumstances:

An immigration judge makes a determination of a status violation in exclusion, deportation, or removal proceedings; or

The INS makes such a determination during the course of adjudicating a benefit application.

Should the INS find that there has been a violation of status, unlawful presence will begin as of the date of the decision denying the immigration benefit, whether or not such a decision is appealed. Likewise, should the immigration judge find that there was a status violation, unlawful presence begins to accrue as of the date of the judge's order, whether or not the decision is appealed. Note however, that if the judge grants voluntary departure, the period of voluntary departure period does not count towards unlawful presence.

Furthermore, the mere commission or conviction of a criminal offense does not trigger unlawful presence for a person who has not remained past the period of authorized stay as indicated on Form I-94. An immigration judge must have found the alien removable during the course of proceedings based on such an offense for the alien to be considered unlawfully present. Again, the period of unlawful presence commences with the execution of the judge's order, regardless of whether or not an appeal is filed.

Time Spent in Proceedings. Finally, the memo stated that time spent in proceedings does not count when calculating the alien's period(s) of unlawful presence. However, it should be noted that being in proceedings does not grant the alien a period of authorized stay. For example, if an alien enters the U.S. without inspection, the alien begins to accrue unlawful presence the day he/she enters the U.S. illegally and continues to throughout proceedings. But in the case of a nonimmigrant who has not stayed in the U.S. beyond the date specified on his/her Form I-94, and is placed in removal proceedings, unlawful presence will not begin to accrue until the date noted on the Form I-94 or the immigration judge orders the alien removed, whichever is earlier.

Parolees. If a parolee remains in the country beyond the period of parole authorized by the Attorney General, unlawful presence begins to accrue as of the date the parole authorization expired. If the parole was revoked or terminated prior to the date it was due to expire, unlawful presence begins to accrue as of the date of revocation or termination.

Conditional Permanent Residents. An alien who has been granted conditional permanent residence (either via marriage or entrepreneurial status), and doesn't timely file a petition to remove the conditions placed on the status, is unlawfully present in the U.S. Failure to make a timely filing results in the automatic termination of the alien's status. Therefore, unlawful presence begins to accrue as of the date the conditional status as a lawful permanent resident expires. There are exceptions to this rule if the failure to file to remove the condition of legal permanent residence was for good cause. The INS may accept a late application before jurisdiction is with the immigration judge. If, on the other hand, the INS seeks to revoke an alien's conditional status as a lawful permanent resident during the two-year period for cause, the alien continues to enjoy this status until such time as the status is formally terminated by the INS. At such time, unlawful presence will begin to accrue.