Criminal Defense of Immigrants

(C) Unlawful Presence Over Six Months or a Year (3/10 Year Bars).  A person who has accrued more than 180 days, but less than one year of unlawful presence (i.e., time in the United States without lawful status) is barred from lawfully re-entering the United States for three years after they voluntarily depart the United States.[135]  Note: if the person departs after immigration proceeding commence, this bar does not apply.[136]

A person who has accrued one year or more unlawful presence is barred for 10 years from re-immigrating lawfully, regardless of whether they depart voluntarily or after immigration proceedings commence.[137]  Those who attempt to re-enter the United State illegally after accruing one year or more of unlawful presence are also inadmissible.[138] 

There are various rules for calculating unlawful presence that are beyond the scope of this discussion.  For example, any unlawful presence prior to April 1, 1997 is not counted, and certain noncitizens admitted on student visas may not accrue unlawful status even after they violate the conditions of the visa by working or quitting school.[139]

[135] INA § 212(a)(9)(B)(i)(I), 8 U.S.C. § 1182(a)(9)(B)(i)(I).

[136] Cable, DOS, No. 98-State-060539 (Apr. 4, 1998), posted on AILA InfoNet at Doc. No. 98040490.

[137] INA § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II).

[138] INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(II).

[139] Memo, Pearson, Exec. Assoc. Comm. Field Operations (HQADN 70/21.2.24-P, AD 00-07) (Mar. 3, 2000), posted on AILA InfoNet at Doc. No. 00030774.