Chapter 6 - Effect of Seeking Admission Following Accrual of Unlawful Presence

A. Inadmissibility Based on Seeking Admission within the Statutory 3 Years or 10 Years After Departure or Removal

An alien who accrued the requisite period of unlawful presence^[1] is inadmissible under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) if the alien “again seeks admission” to the United States within either the statutory 3-year or 10-year period after departure or removal (whichever applies). However, an alien who “again seeks admission” after the end of the statutory 3-year or 10-year period since the alien’s departure or removal (whichever applies) is not inadmissible under INA 212(a)(9)(B) based on the period of unlawful presence preceding the departure or removal.

In general, an alien who is inadmissible under INA 212(a)(9)(B) can only be admitted to the United States or obtain a grant of adjustment of status if the alien applies for, and is granted, a waiver of inadmissibility.^[2]

B. Effect of Returning to the United States During the Statutory 3-Year or 10-Year Period After Departure or Removal

The statutory 3-year or 10-year period begins to run on the day of departure or removal (whichever applies) after accrual of the period of unlawful presence. This statutory period continues to run, without interruption, regardless of whether or how the alien returned to the United States during the 3-year or 10-year period. Thus, it is immaterial whether the alien has spent the applicable statutory 3-year or 10-year period in or out of the United States. As long as the alien again seeks admission^[3] more than 3 or 10 years after the relevant departure or removal,^[4] the alien is not inadmissible under INA 212(a)(9)(B) based on the period of unlawful presence preceding the departure or removal because the statutory 3-year or 10-year period after that departure or removal has ended.

Note however, that the manner in which the alien returned to the United States during the statutory 3-year or 10-year period may result in the accrual of a new period of unlawful presence or result in inadmissibility under other grounds.

C. Relationship Between Multiple Unlawful Presence Grounds of Inadmissibility

There are three separate inadmissibility grounds involving the accrual of unlawful presence – the 3-year unlawful presence ground,^[5] the 10-year unlawful presence ground,^[6] and the permanent unlawful presence ground.^[7] Whether a specific inadmissibility ground applies to an alien depends on an analysis of the facts of the alien’s case in light of that specific ground.

It is possible that an alien’s immigration history makes the alien inadmissible under both the 3-year or 10-year unlawful presence grounds of inadmissibility and the permanent unlawful presence ground of inadmissibility. Additionally, an alien who accrued the requisite unlawful presence and who is removed from the United States may be inadmissible as an alien previously removed under INA 212(a)(9)(A)^[8] and under the unlawful presence grounds, depending on the circumstances of the alien’s case.

Footnotes

[^ 1] If an alien accrues more than 180 days but less than a year of unlawful presence during a single stay in the United States, departs the United States, and again seeks admission within 3 years of such departure, then the alien is inadmissible. See INA 212(a)(9)(B)(i)(I). If an alien accrues 1 year or more of unlawful presence during a single stay in the United States, departs or is removed from the United States, and again seeks admission within 10 years of such departure or removal, then the alien is inadmissible. See INA 212(a)(9)(B)(i)(II).

[^ 2] For more information on waivers, see Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM]. For more information about waivers specific to the unlawful presence ground of inadmissibility, see INA 212(a)(9)(B)(v) and 8 CFR 212.7(e).

[^ 3] In determining inadmissibility under INA 212(a)(9)(B), USCIS only considers the alien’s pending application for admission.

[^ 4] “Relevant departure or removal” means, in this instance, the departure or removal immediately following the accrual of the requisite unlawful presence.

[^ 5] See INA 212(a)(9)(B)(i)(I).

[^ 6] See INA 212(a)(9)(B)(i)(II).

[^ 7] See INA 212(a)(9)(C)(i)(I).

[^ 8] See INA 212(a)(9)(A). An alien who has been ordered removed is inadmissible if the alien seeks admission to the United States within a statutorily-specified period of time after removal or departure.