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Unlawful Presence Bar Can Be Served In the US

July 23, 2014

Unlawful Presence Bar Can Be Served In the US

Author: New York Immigration Lawyer Alena Shautsova

Under the Immigration laws, if a person overstayed his/her visa or period of authorized stay, he or she would be inadmissible into the US for a period of 3 or 10 years depending  on the period of overstay if such a person leaves the US. The bar to entry triggers only when the person leaves the US, however for a long time the question was: does the person have to be outside the US to subsequently receive immigration benefits, or does the bar starts to run when the person leaves the US and continues to run even if the person somehow re-enters the US.

The question was answered in unpublished BIA decision Matter of Cruz, 4/9/14.  The BIA stated that “..if section 212(a)(9)(B) of the Act created inadmissibility for an alien who seeks or has sought admission to the United States (similar to section 212(a)(6)(C)(i) of the Act’s provision for the inadmissibility of an alien who “seeks” or “has sought” to procure admission or another immigration benefit by fraud or willful misrepresentation of a material fact), we might construe the statute as creating permanent rather than temporary inadmissibility. However, the statute simply states that an alien is inadmissible if he “seeks” admission within the pertinent period,  which is ambiguous language.”

It means that the bar of unlawful presence is a temporary bar which triggers when the person leaves the country and continues to run if the person re-enters the US without inspection and/or using misrepresentation.  This is an important decision because it illuminates need for an extreme hardship waiver if the time of the bar has passed.