A. Overview

The Illegal Immigration Reform and Immigrant Responsibility Actof 1996 (IIRIRA) created new penalties for aliens who are or havebeen unlawfully present in the United States. This article firstsummarizes those penalties, then discusses possible ways to avoid,delay or remedy the penalties.

Caveat: Although Congress enacted the IIRIRA four years ago,the Immigration and Naturalization Service (INS or Service) hasnot published regulations to implement their interpretation ofwhat constitutes "unlawful presence." In the meantime,practitioners must continue to cope with the plethora of confusingand sometimes contradictory State Department and INS memos andcables on this issue.

B. Background

As background, "unlawful presence" is a new term ofart created by § 301 of the IIRIRA, which amended INA §212(a)(9). The statute defines "unlawfully present" asbeing in the United States "after the expiration of theperiod of stay authorized by the Attorney General," or beingpresent without being admitted or paroled. As of April 1, 1997, analien who has been unlawfully present in the United States formore than 180 days but less than one year and who voluntarilyleaves the country is ineligible for admission or reentry to theUnited States for three years. An alien unlawfully present for oneyear or more and who leaves or is removed from the United Statesis inadmissible for ten years. These two provisions arecolloquially known as the 3/10 year bar. A related new ground ofinadmissibility affects aliens who have been unlawfully present inthe United States for an aggregate period of more than one year,and who seek to reenter without being admitted.

Another new penalty created by IIRIRA uses very similarlanguage to that used to define unlawfully present. Under INA §222(g), a nonimmigrant visa is void as soon as the nonimmigrantalien "remain[s] in the United States beyond the period ofstay authorized by the Attorney General." Aliens affected bythis provision are precluded from seeking a new nonimmigrant visaat any post other than in their country of nationality, exceptunder certain "extraordinary circumstances." An alienstays subject to INA § 222(g) as long as he or she is anonimmigrant; it is not just a one-time penalty. Many people callaliens subject to INA § 222(g) "visa overstayers" asshorthand.

The State Department and the INS have been interpreting andreinterpreting the scope of these two provisions since IIRIRA’senactment. Initially, the term "unlawful presence" had abroader definition than "visa overstayer." Over time,however, the INS definition of "unlawful presence" hasnarrowed to parallel "visa overstayer." The StateDepartment has issued a cable explaining the distinction betweenthe "visa overstayer" provision and the "unlawfulpresence" provisions of INA § 212(a)(9). In terms ofeffects, INA § 222(g) does not confer substantive ineligibility,but rather voids the visa on which the overstayer arrived. The INA§ 222(g) overstayer may immediately apply for a new visa.Further, INA § 222(g) applies to any overstay, whereas INA §212(a)(9) applies only to those who overstay for a minimum of 180days. INA § 222(g) is also retroactive, applying to overstaysthat occurred both before and after the law’s effective date,while INA § 212(a)(9) is not. Finally, the exceptions that applyto INA § 212(a)(9) violations, e.g. exemption for minors,asylum applicants, and change or extension of status applicants,do not apply to INA § 222(g). However, despite these differences,INS and the Department of State have agreed that the substantivedefinition of an overstayer as it relates to the two provisions isthe same.

A September 19, 1997 INS memorandum significantly changed theService’s interpretation of what constitutes "unlawfulpresence" for nonimmigrants. Under the Service’s modifiedinterpretation:

"[U]nlawful presence with respect to a nonimmigrant includes only periods of stay in the United States beyond the date noted on Form I–94, Arrival/Departure Record. Unlawful presence does not begin to run from the date of a status violation (including unauthorized employment). Unlawful presence for a nonimmigrant may begin to accrue before the expiration date noted on the I–94, however, in two circumstances: (1) when an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings; or (2) when the INS makes such a determination during the course of adjudicating a benefit application."

The State Department issued a cable agreeing with this INSmemo.

What does all that mean? Consider the following hypothetical.Until the INS September 19, 1997 memo, an alien in B-2 touriststatus who entered the United States on April 2, 1997 andimmediately started working was unlawfully present in the UnitedStates. The first day of unlawful work started the 180-day clockticking for purposes of INA § 212(a)(9)(B)(i)(I), even though thealien had not overstayed the expiration date on her I-94 card.After the September 19 memo, however, the same alien is not"unlawfully present." This interpretation accords withthe State Department’s interpretation of INA § 222(g).

This is good news to practitioners trying to advise clients. Inthe hypothetical above, the alien who worked illegally but did notoverstay the expiration date on her I-94 card is not subject toeither INA § 222(g) or the 3/10 year bar of INA § 212(a)(9)(B).

C. The Difference between INA § 212(a)(9)(B) and (C)

INA § 212(a)(9)(C)(i) makes inadmissible an alien who"has been unlawfully present in the United States for anaggregate period of more than 1 year" after April 1, 1997,and "who enters or attempts to reenter the United Stateswithout being admitted." A memorandum published by the INS onMarch 31, 1997 makes clear that time spent unlawfully present inthe United States "is measured cumulatively for purposes ofsection 212(a)(9)(C), but not for purposes of section212(a)(9)(B)." A person who has been unlawfully present inthe United States for an aggregate period of more than one yearwould be inadmissible under INA § 212(a)(9)(C)(i) if he or sheever tries to enter the United States illegally. She would have towait at least ten years before she could be admitted to the UnitedStates again, and even then could reenter only if the INS grantedher advance permission to reapply. As long as the person entersthe United States legally, however, (e.g., on an H-1B visa), shewould not be inadmissible under INA § 212(a)(9)(C)(i).

II. ways to avoid the 3/10 year Bar altogether

A. Be in a Class of Aliens Considered Lawfully Present in the United States

The INS considers the following categories of aliens to belawfully present in the United States, and thus not subject to the3/10 year bar:

• Aliens admitted as refugees under INA § 207;
• Aliens granted asylum under INA § 208;
• Aliens granted withholding of deportation/removal under INA § 243(h) for aliens placed in proceedings before April 1, 1997, or under INA § 241(b)(3) for aliens placed in proceedings on or after April 1, 1997;
• Aliens granted cancellation of removal pending adjustment;
• Aliens under a current grant of deferred enforced departure;
• Aliens under a current grant of temporary protected status;
• Cuban-Haitian entrants under INA § 202(b) of the Immigration Reform and Control Act of 1986; and
• Aliens with properly filed applications for adjustment of status under INA § 245.

Practice Pointer: A word of warning for adjustment applicants: Analien who accrued more than 180 days of unlawful presence beforefiling an adjustment of status application under INA §§ 245(a) or245(i) and who then obtains advance parole may trigger the 3/10 yearbar by leaving the United States. The INS has warned that it willnot generally grant advance parole in such cases unless it appearsthat the alien would, in the exercise of discretion, be likely toreceive a waiver of inadmissibility. Such waivers are discussed atthe end of this article.

If an alien with a pending adjustment application and more than180 days of unlawful presence has already received advance parole,the INS will generally parole the alien back into the United Statesto continue the adjustment application. That only delays theinevitable, however, because when the adjustment of statusapplication is adjudicated, the alien must still establishadmissibility and eligibility for an immigrant visa under INA §245(a)(2). Because the alien left the United States, triggering the3/10 year bar, such an adjustment applicant will be foundinadmissible under INA §§ 212(a)(9)(B)(i) when the adjustment ofstatus application is adjudicated.

Advocates may want to challenge the INS’s interpretation onthis issue. The INA clearly states that a person paroled into theUnited States is not admitted. Thus, leaving the UnitedStates under a grant of advance parole arguably is not a"departure" for purposes of INA § 212(a)(9), when neitherthe return to the United States on advance parole nor theapplication for adjustment of status is an "entry."

B. J-1 Waiver Applicants

Under the INS’s September 19 memo, J-1 exchange visitors whoare subject to the two-year home residence requirement of INA §212(e) and whose I-94 cards are marked "D/S" do not haveto worry about accruing unlawful presence while seeking a waiver ofthat requirement. The answer is less clear for J-1 waiver applicantswho have a fixed expiration date on their I-94 card, and who staybeyond that date. Arguably, J-1 exchange visitor aliens in thislatter situation are also lawfully present in the United States.Neither the Department of State nor the INS has formally taken aposition on this issue yet. But an INS Operations Instruction statesthat filing a J-1 waiver application "does not terminate anexchange alien’s nonimmigrant status. No action shall be taken toenforce the alien’s departure while a decision is pending on theapplication for waiver." Attorneys should argue that thislanguage means that a J-1 waiver applicant in the latter situationshould not have to worry about the 3/10 year bar while the waiverapplication is pending.

C. Certain Immediate Relatives and Special Immigrants

Although INA § 245(c)(2) normally requires an alien to havecontinuously maintained a lawful status since admission or parole tobe eligible to apply for adjustment of status under § 245(a), anexception exists for immediate relatives described in INA § 201(b),as long as the alien originally entered the country lawfully, andspecial immigrants described in INA §§ 101(a)(27)(H), (I), (J), or(K). Therefore, people in these categories may adjust status withouthaving to worry about the 3/10 year bar, unless they depart whiletheir application is pending.

D. Reinstatement for F and J Nonimmigrants

Foreign nationals who have violated their status may sometimesapply for reinstatement. This is particularly common for F and Jnonimmigrants, who may unintentionally violate their status whilestill believing themselves to be a bona fide student or scholar. Forexample, a student may drop out of school for one semester (with theintent of resuming the next semester), drop below full-time courseload, fail to obtain an extension of an I–20 before it expires, orimproperly transfer between institutions. While these technicalinfractions might constitute a violation of status, they have forthe most part been infractions that the INS has allowed to becorrected, so that a student can continue his or her educationalprogram.

Aliens who have fallen out of status may apply for reinstatementon Form I-539. There is a risk in doing so, however. The INS’sSeptember 19 memo explicitly notes that the Service may determinethat an alien has violated her status while deciding whether toreinstate the alien. If reinstatement is denied, "unlawfulpresence will begin as of the date of the decision denying theimmigration benefit, whether or not appealed."

To see how this plays out, consider a student from Asia whodiscovers that he will not be able to meet tuition payments nextsemester at his U.S. college because of the fiscal crisis in hishome country. When he terminates his status as a full-time student,he must leave the United States within the 60-day grace periodgranted F-1 students, or face § 222(g) penalties the rest of hisnonimmigrant life.

Two examples highlight the application of unlawful presence inthe reinstatement context. Sergei, who is an F-1 student, drops fromfull-time to part-time status in a given semester, also workswithout authorization, and then returns to full-time status. Heapplies for reinstatement, and INS denies it because of the illegalemployment. Sergei begins to accumulate days of unlawful presence asof the date the INS denies the reinstatement application. Bycontrast, consider Shen-Li, who decides not to register for thespring semester at the school she has been authorized to attend. Shereturns to that school for full time study the following fallsemester, and applies to the INS for reinstatement. The INS approvesthe application. Shen-Li has not accumulated any days of unlawfulpresence under INA § 212(a)(9)(B).

To make matters more complicated, at least a few INS offices aredeciding for themselves whether an alien is subject to INA § 222(g)when reviewing reinstatement applications, rather than leaving thisdecision to the State Department. These offices, even when approvingreinstatement, apparently are annotating the alien’s F visa in thepassport or the I-20 form with the notation "Canceled per222(g)." What are reinstated aliens to do then if they want totravel outside the United States? Do they need to get a new visa toreenter the United States, even though they have been reinstated tovalid F status? Apparently so. And on what authority can an INSofficer cancel a visa in a passport?

Reinstatement and unlawful presence in the J exchange visitorcontext has its own quirks. The United States Information Agency(now a bureau within the Department of State) stated that it has theauthority to reinstate to lawful status an exchange visitor whoremains beyond the period of authorized stay and who thereby hasbecome unlawfully present. If the State Department approves thereinstatement, the unlawful presence will be tolled as of the datethe State Department received the request for reinstatement.

Unlike the INS, the State Department will not make thereinstatement effective retroactively to cure the unlawful presence.This may leave a gap in validity dates for the J student or scholar.For example, a Ph.D. student finishing his or her thesis may notrealize that he or she has to register for the semester at theschool to stay in proper J status. When the student finds out thathe or she has been out of status, the student may have beenunlawfully present in the United States for more than six months,and thus may become subject to the three-year bar under INA §212(a)(9)(B).

E. Winning in Removal Proceedings

The INS maintains that time spent in proceedings before animmigration judge or on appeal is not a period of authorized stay.However, as pointed out below in the voluntary departure section ofthis article, the INS acknowledges that the three-year bar does notapply to people in removal proceedings. If an alien successfullycontests the charges of inadmissibility or deportability brought bythe INS in removal proceedings, the person will be deemed not tohave accrued any periods of unlawful presence during the pendency ofthe proceedings. If the admission period expired during the courseof proceedings, unlawful presence begins to accrue "as of thedate of the order." It is unclear what the INS means by"order," but it apparently refers to the removal ordeportation order.

If an immigration judge grants the alien a form of reliefthat has been contested by the INS (such as cancellation ofremoval), the period of unlawful presence stops accruing as of thedate the judge grants the relief. If, however, the Service prevailson appeal, unlawful presence begins to accrue once again, as of thedate the decision on appeal was made in favor of the INS.

This puts foreign nationals in removal proceedings on the hornsof a dilemma. To assert his or her rights in a removal proceeding,the alien may accrue sufficient days of unlawful presence to besubject to the ten-year bar if the claim is unsuccessful and thealien then leaves the United States. Advocates should considerfiling a due process challenge for aliens caught in this situation.

F. Successful Late Filings by Conditional Permanent Residents

The INS’s September 19, 1997 memo states that an alien grantedstatus as a conditional permanent resident under INA §§ 216 or216A who does not timely file a petition to remove the conditionsplaced on that status is unlawfully present in the United States.The reasoning behind this is that failure to timely file an I-751 orI-829 results in the automatic termination of the alien’s status.Such an individual is considered to have remained in the UnitedStates for longer than the period authorized by the AttorneyGeneral. Unlawful presence begins to accrue as of the date theconditional status as a lawful permanent resident expires.

However, the regulations allow the INS to accept a late I–751or I–829 before jurisdiction vests with the immigration judge (IJ),if the alien can establish that failure to make a timely filing wasfor good cause. Alien entrepreneurs and their dependents who filelate must also establish extenuating circumstances. In these cases,the Service can approve the petition retroactively, restore thealien’s status, and cancel any outstanding notice to appear. Whenjurisdiction vests with the IJ, the judge may terminate the matterupon joint motion by the alien and the INS. Therefore, when theService or the IJ accepts a late filing and the alien’s status hasbeen restored, the alien will not be considered to have accrued anyperiods of unlawful presence in the United States. When the latefiling is not accepted, however, the period of unlawful presencebegins to accrue as of the date the alien’s status as aconditional permanent resident expired.

This policy places conditional permanent residents in the samedilemma as aliens in removal proceedings. If they have alreadystarted to accumulate unlawful presence because their conditionalpermanent resident status expired, convincing the INS or animmigration judge to accept a late filing may be the only way toavoid unlawful presence. However, if the effort takes a long time,and ultimately fails, the alien may find himself or herself subjectto the ten-year bar.

The INS has stated that for work authorization purposes, aconditional resident who has renewed an I-751 in proceedings isstill considered a permanent resident, and therefore should not needan employment authorization document. It seems contradictory to saythat the same alien is unlawfully present in the United States.

By contrast, when the INS seeks to revoke an alien’sconditional status as a lawful permanent resident during thetwo-year conditional period, the alien continues to enjoy all therights and privileges of a lawful permanent resident until such timeas the Service formally terminates his or her status. In such cases,unlawful presence will begin to accrue only as of the date theService actually terminates the alien’s status as a lawfulpermanent resident.

G. Bars Not Applicable Despite Unlawful Presence

Fortunately, the 3/10 year bar does not apply to all foreignnationals who have been unlawfully present for more than 180 days. Afew exceptions exist.

1. Lawful Permanent Residents

The statute explicitly states that the 3/10 year bar does not apply to lawful permanent residents.

2. Asylum Applicants

Aliens who have filed bona fide asylum applications are notunlawfully present in the United States while their applicationsare pending, unless they work without authorization. Thestatute does not define "bona fide" for this purpose.

3. Unlawful Presence under Age 18

No time in which an alien is under 18 is taken into accountin determining unlawful presence.

4. Family Unity Beneficiaries

Aliens who are beneficiaries of family unity protectionunder § 301 of the Immigration Act of 1990 are not unlawfullypresent.

5. Battered Women and Children

Battered women and children who meet the definitionalrequirements of INA § 212(a)(6)(A)(ii) are not unlawfully presentin the United States.

These statutory exceptions only apply to the 3/10 year bar inINA § 212(a)(9)(B). They do not apply to people who have beenunlawfully present for an aggregate of more than a year under INA§ 212(a)(9)(C)(i).

6. Cubans and Nicaraguans under NACARA and Their Family Members

In 1997 Congress enacted the Nicaraguan Adjustment and CentralAmerican Relief Act (NACARA), which provides eligibility foradjustment of status for many Cubans and Nicaraguans. AnyNicaraguan or Cuban national who was in the United States as ofDecember 1, 1995 is eligible for adjustment of status, provided heor she applies before April 1, 2000, and is otherwise eligible toreceive a visa. The spouses, children, and unmarried sons ordaughters of eligible applicants may also apply for adjustment ofstatus.

Congress subsequently enacted a technical corrections law tothe NACARA. The changes made the NACARA’s provisions even moreadvantageous for Nicaraguans and Cubans. The original NACARA hadmade certain grounds of inadmissibility, including INA §§212(a)(4) (public charge); 212(a)(5) (labor certification andsimilar requirements); 212(a)(6)(A) (aliens present withoutadmission or parole); and 212(a)(7)(A) (documentationrequirements) inapplicable to Cubans and Nicaraguans. Thetechnical corrections law also made the 3/10 year bar onadmissibility for aliens "unlawfully present"inapplicable to such persons. The technical change benefits bothprincipal applicants under the NACARA and eligible spouses andchildren. Thus, Nicaraguans and Cubans who are unlawfully presentin the United States can safely ignore the 3/10 year bar if theyqualify for adjustment of status under the NACARA. OtherNicaraguans or Cubans who are unlawfully present in the UnitedStates are also protected from the 3/10 year bar if they marry (orare the child of) an alien who is otherwise eligible under theNACARA and if the Nicaraguan or Cuban spouse or child:

• Has been continuously physically present in the United States since December 1, 1995;
• Is physically present in the United States when he or she applies for adjustment of status;
• Applies for adjustment of status before April 1, 2000; and
• Is otherwise eligible for an immigrant visa, except that the grounds of inadmissibility specified above (including the 3/10 year bar) do not apply.

The IIRIRA significantly restricts the opportunity ofaliens to leave the United States under a grant of voluntarydeparture. INA § 240B(a)(2) limits to 120 days the period ofvoluntary departure that may be granted to an alien before thecompletion of proceedings. INA § 240B(b)(2) limits to 60 days theperiod of voluntary departure that my be granted to an alien by animmigration judge at the conclusion of proceedings.

The INS originally stated that "the grant of voluntarydeparture by the Service or an immigration judge (IJ) will not stopthe running of time unlawfully present." The Service alsostated that aliens granted voluntary departure prior to, during, orfollowing proceedings were not considered to be in the United Statesin a period of stay authorized by the Attorney General.

The Service’s September 19, 1997 memo reversed thisinterpretation. Under the revised interpretation, voluntarydeparture is considered a period of stay authorized by the AttorneyGeneral, regardless of whether it is granted by the Service beforethe commencement of proceedings, by an IJ at the end of proceedings,or by the Board of Immigration Appeals (BIA) after an appeal. If theIJ grants the alien voluntary departure with an alternate order ofremoval, and the alien fails to depart by the date specified,unlawful presence accrues only as of the date voluntary departureexpires and the order of removal takes effect. A State Departmentcable cautions that the INS considers a grant of voluntary departurea period of stay authorized by the Attorney General only for INA §212(a)(9)(B) purposes, not for any other purpose.

A variation on this new interpretation may help some aliens inremoval proceedings. As noted above, an alien who has beenunlawfully present more than 180 days but less than one year and whovoluntarily departs the United States "prior to thecommencement of proceedings" is inadmissible for three yearsafter departure or removal. By contrast, the ten-year bar applies ifan alien accrues a year or more of unlawful presence and thendeparts or is removed, voluntarily or otherwise, without regard tothe pendency of proceedings.

Looking carefully at the statute, an alien in proceedings cannotbe subject to the three-year bar. The INS has agreed that thethree-year bar does not apply to people in proceedings, because theydid not depart voluntarily before proceedings began.

However, as noted above, because the INS considers time inproceedings to be unlawful presence, an alien in proceedings couldaccrue a year of unlawful presence and therefore be subject to theten-year bar. One way to avoid this from happening would be toobtain voluntary departure in proceedings before the alien accrues ayear of unlawful presence. Under the INS’s current interpretation,voluntary departure essentially tolls the alien’s unlawfulpresence.

This strategy has certain risks. For example, as noted above,voluntary departure is limited to a maximum of 120 days. If thealien fails to leave by the time voluntary departure expires, querywhether the 180-day clock starts ticking from zero again. No oneseems to know. Even if it does, that may be small comfort, sinceother penalties apply to an alien who fails to leave the UnitedStates by the end of the voluntary departure period. For example, aperson who fails to depart voluntarily as ordered is ineligible foradjustment of status and other relief for ten years. An alien whofails to leave may also have to pay a civil fine of $1,000-$5,000.Or the alien may be ordered removed in absentia. Such aliens cannotreturn to the United States for five years, and are ineligible foradjustment of status and other specified forms of relief for tenyears. Aliens in proceedings and their counsel must weigh thesevarious factors before deciding to seek voluntary departure as a wayto delay the ten-year bar.

The State Department (and presumably the INS) measures the datethat removal proceedings begin as the date that Form I-862("Notice to Appear") is filed with the immigration court.The State Department has acknowledged that it may be difficult toknow whether an alien departed before removal proceedings began. Ifa consular officer finds that the alien voluntarily departed theUnited States after being unlawfully present for more than 180 daysbut less than one year, the officer may presume that the applicantis subject to the three-year bar. The burden is then on the visaapplicant to prove that removal proceedings had already started bythe time the applicant departed. If the applicant can meet thatburden (e.g., by presenting a copy of the Form I–862), the alienis not ineligible under the three-year bar.

The State Department has also advised that an alien has theburden to establish whether he or she received voluntary departureand if so, whether it was granted during a removal proceeding.Consular posts should not query the INS directly about this.

B. Tolling

For aliens who were lawfully admitted or paroled into theUnited States, "unlawfully present" periods are tolled forup to 120 days during the pendency of a timely "nonfrivolous"application for change or extension of status, providing theapplicants were not employed without authorization before theapplication was filed or while it was pending. The Service,recognizing that processing delays have now, in many cases, exceeded120 days, has extended the tolling period for the entire pendency ofthe petition.

The INS has not defined "frivolous" for this purpose.Presumably the INS will apply the definition of"frivolous" it uses for asylum applications. Under thatdefinition, an application is frivolous only "if any of itsmaterial elements is deliberately fabricated." Such adefinition makes sense in the unlawful presence context as well.

The INS has clarified how this tolling period works. Under theINS’s interpretation, aliens admitted to the United States forduration of status will not accrue unlawful presence based solely onthe denial of a change of status application, if the denial was notbased on ineligibility due to a status violation. If, however, thechange of status application was denied because of a statusviolation, unlawful presence begins accruing as of the date of thedenial. For aliens admitted for a date certain, unlawful presencebegins accruing as of the date the I–94 expires, if the denial wasissued before the I–94 expired and the denial was not based onineligibility due to a status violation. If the denial was issuedafter the I–94 expiration date, but during the 120-day tollingperiod, and the alien meets the requirements of the statutorytolling provision, unlawful presence accrues as of the date of theService’s decision. If, however, the denial was issued after the I–94expiration date and after the 120-day tolling period, unlawfulpresence begins accruing as of the 121st day.

The statute explicitly states that the tolling provision suspendsthe unlawful presence clock only for purposes of the three-year bar,not the ten-year bar.

It should be noted that INA § 222(g) does not contain acomparable tolling provision for applications for change orextension of status. The State Department has stated that aliens whotimely apply for a change of status or extension of stay and whoremain in the United States after the date on their I–94 card butwhose request is subsequently approved are not subject to § 222(g).An alien who files a late application for change or extension ofstatus and whose application is approved retroactively is notsubject to § 222(g).

Aliens who depart after the date on the I–94 but before the INSissues a decision on the extension or change of status applicationare subject to § 222(g). However, the State Department has statedthat it will give a blanket extraordinary circumstances exemption insuch cases.

The INS has not stated whether an alien who leaves the UnitedStates while his or her extension of change of status application ispending thereby starts the unlawful presence clock running again.

Tolling may not work for certain extension requests in the Jexchange alien context. The USIA, before absorption by theDepartment of State, stated that J aliens may not apply for aprogram extension or transfer during the 30-day grace period theyhave after they end their program. This view is based on adistinction between "J program status" and lawful presenceor status in the United States. According to the former USIA, the30-day grace period is only for the purpose of departure, and is nota J program status.

IV. How to remedy the 3/10 year Bar if it applies to your client

A. INA § 212(a)(9)(B)(v) Waiver for Immigrants

INA § 212(a)(9)(B)(v) allows a discretionary waiver foraliens otherwise subject to the 3/10 year bar under certainconditions. To be eligible for this waiver, the alien must be animmigrant and must be the spouse or son or daughter of a U.S.citizen or lawful permanent resident. Parents of U.S. citizens orpermanent residents are not eligible. The alien must establish thatrefusal of the application for a visa, admission, or adjustment ofstatus would result in "extreme hardship" to his or herU.S. citizen or lawful permanent resident spouse or parent.

To apply for such a waiver, the alien must file Form I–601,Application for Waiver of Grounds of Excludability. The INS hasstated that the waiver cannot be filed while the alien is still inthe United States, since the 3/10 year bar is only triggered bydeparting the United States. The INS may be reconsideringthis interpretation, but nothing publicly has been announced.

Once such an alien departs the United States and applies for avisa at a U.S. consular post abroad, the alien may file a waiverapplication, if eligible, after the consular officer has determinedthe applicable grounds of inadmissibility. The alien files thewaiver application with the consular officer, who then sends it onto the INS for a decision.

The statute does not define extreme hardship for purposes of thiswaiver. As the BIA has recently explained, "[e]xtreme hardshipis not a definable term of fixed and inflexible meaning, and theelements to establish extreme hardship are dependent upon the factsand circumstances of each case." Matter of Anderson isthe lead BIA decision defining extreme hardship for suspension ofdeportation purposes. A recent BIA decision, Matter of O-J-O-,explained that to establish extreme hardship for suspensionpurposes, the nine factors outlined in Matter of Andersonmust be considered in their totality to determine whether thecombination of hardships take the case beyond economic and socialhardships "ordinarily" associated with deportation orremoval. It remains to be seen whether the BIA and courts apply asimilar restrictive definition to waiver applications under INA §212(a)(9)(B)(v).

It appears that aliens who do not receive waivers from a consularofficer face a steep hill to climb on appeal. Between January andApril, 2000, the Administrative Appeals Office (AAO) decided elevenappeals of INA § 212(a)(9)(B) denials. The AAO did not reverse anyof the denials.

In one decision, the AAO relied on BIA discussion of extremehardship as it relates to INA § 212(i). The BIA has held that thefactors to consider when determining "extreme hardship"include: (1) the presence of a lawful permanent resident or UnitedStates citizen spouse or parent in this country; (2) the qualifyingrelative’s family ties outside the United States; (3) theconditions in the country or countries to which the qualifyingrelative would relocate and the extent of the qualifying relative’sties in such countries; (4) the financial impact of departure fromthis country; and (5) significant conditions of health, particularlywhen tied to an unavailability of suitable medical care in thecountry to which the qualifying relative would relocate. The AAOalso held that, based on Ninth Circuit precedent, family tiesacquired after the immigration violation need not be "accordedgreat weight." In the AAO case, the petitioner, who claimedthat his wife would suffer financially and emotionally due to ahistory of depression, was denied a waiver. The AAO held that he didnot demonstrate a greater than ordinary "economic and socialdisruptions involved in the removal of a family member." Whileno specific reference is made in that case, the AAO is likely citingNinth Circuit precedent holding that extreme hardship is unusual orbeyond that which would usually be expected upon deportation.

Another case demonstrates the extreme difficulties in obtaining awaiver after an initial denial. One woman demonstrated her U.S.resident father’s "poor health, near blindness, fivesurgeries, depression from being separated from his daughter and thecloseness of the family and the applicant’s eight siblings in theU.S. who are U.S. citizens." The father had lived in the U.S.for 25 years, and presented a psychological evaluation stating thathe was passively suicidal due to the separation from his daughter.Nevertheless, the AAO denied the appeal.

B. Other Waivers

In addition to waivers under INA § 212(a)(9)(B)(v), certainaliens may be eligible for a broader exercise of discretion. Forexample, INA §§ 209(c) and 245A(d)(2)(B)(i), relating to asyleeadjustments and second-stage legalization adjustments, respectively,authorize the Attorney General to waive most grounds ofinadmissibility "for humanitarian reasons, to assure familyunity, or when it is otherwise in the public interest." Alienswho qualify for one of these waivers can overcome the 3/10 year bar.

Nonimmigrants can apply for a waiver under INA § 212(d)(3). Thiswaiver overcomes most grounds of inadmissibility, including the 3/10year bar. The INS considers three factors in determining whether toapprove a § 212(d)(3) waiver:

• The risk of harm to society if the applicant is admitted;
• The seriousness of the applicant’s prior violations; and
• The person’s reasons for wishing to enter the United States. There is no need to show a compelling reason for the visit.

C. Advance Permission to Reapply

Both aliens who are inadmissible under INA § 212(a)(9)(A)because they have been previously removed and aliens who areinadmissible under INA § 212(a)(9)(C) because they are unlawfullypresent after a previous immigration violation or who have beenunlawfully present in the United States for an aggregate period ofmore than one year can apply for advance permission to reenter. Bycontrast, the statute fails to provide this remedy for alienssubject to the 3/10 year bar of INA § 212(a)(9)(B). Advocates mightconsider an equal protection argument to challenge Congress’failure to provide this remedy for some unlawfully present aliens.

Procedurally, an alien seeking advance permission to reapplycompletes Form I-212. The State Department’s Foreign AffairsManual (FAM) contains guidelines for adjudicating such requests foraliens outside the United States. Aliens can also apply with the INSat a port of entry. They should also be allowed to apply even beforethey leave the United States.

V. Conclusion

This article contains at least four morals. First, whatconstitutes "unlawful presence" is still unclear, andsubject to ever-changing interpretations. Second, practitionersstill need to think of "visa overstay" and"unlawful presence" as two separate concepts for certainpurposes.

Third, foreign nationals need to be aware of and count all daysof unlawful presence in the United States. They should not assumethat as long as they leave the country before they haveaccumulated 180 days of unlawful presence on their most recenttrip, they do not have to worry about becoming inadmissible. Thatis true for purposes of INA § 212(a)(9)(B)(i)(I), but not for theseparate ground of inadmissibility set forth in INA § 212(a)(9)(C)(i).

Finally, even if a person has unlawful presence, many waysexist to delay or beat the 3/10 year bar. As always, creativity isneeded to help your clients.

* Stephen Yale-Loehr is co-author with Stanley Mailman of Immigration Law and Procedure, the leading immigration law treatise, published by Matthew Bender and Co., Inc. He also teaches immigration and refugee law at Cornell Law School, and practices immigration law at Miller Mayer in Ithaca, New York. He can be reached via e-mail at syl@millermayer.com, or on the Internet at http://www.millermayer.com/. Earlier versions of this article appeared in 3 Bender’s Immigration Bulletin 779 (Aug. 1, 1998) and 2 American Immigration Lawyers Association (AILA), 1998-99 Immigration & Nationality Law Handbook 263 (R. Patrick Murphy, et al. eds., 1998). Copyright © 2000 Stephen Yale-Loehr. All rights reserved.

Footnotes:

1 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (enacted as Division C of Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009) (hereinafter IIRIRA).
2 See generally 5 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 63.10 (rev. ed. 1999) (hereinafter Gordon, Mailman & Yale-Loehr).

3 8 U.S.C. § 1182(a)(9).

4 INA § 212(a)(9)(B)(ii), 8 U.S.C. § 1182(a)(9)(B)(ii).

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

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

7 INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I).

8 IIRIRA § 632 (creating INA § 222(g), 8 U.S.C. § 1202(g)). See also 22 C.F.R. § 40.68.

9 State Dep’t Cable No. 97-State-105097 (June 7, 1999), reproduced in 76 Interpreter Releases 977 (June 28, 1999).

10 Memorandum from Michael Pearson, Executive Associate Commissioner, INS Office of Field Operations, File No. HQ 70/12-P (Jan. 14, 1999), reprinted in 76 Interpreter Releases 252 (Feb. 8, 1999).

11 Memorandum from Paul W. Virtue, then-Acting INS Executive Associate Commissioner, to all field offices, Section 212(a)(9)(B) Relating to Unlawful Presence, File No. 96 Act #058, HQIRT 50/5.12 (Sept. 19, 1997), reproduced in 74 Interpreter Releases 1498 (Sept. 29, 1997), and 2 Bender’s Immigration Bulletin 842 (Oct. 15, 1997) (hereinafter INS September 19, 1997 Memo).

12 State Dep’t Cable No. 97-State-235245 (Dec. 17, 1997), reprinted in 17 AILA Monthly Mailing 138 (Feb. 1998), 3 Bender’s Immigration Bulletin 120 (Feb. 1, 1998), and 75 Interpreter Releases 53 (Jan. 12, 1998). See also State Dep’t Cable No. 98-State-060539, supra note 9, at 30.

13 See State Dep’t Cable No. 96-State-232219 (Nov. 8, 1996), reproduced in 1 Bender’s Immigration Bulletin 56 (Dec. 1996) ("Section 222(g) applies to overstays only, not to out-of-status cases generally. An alien who violates status in some way but does not remain in the U.S. beyond his/her period of authorized stay is not subject to § 222(g). Thus, § 222(g) would not apply to an alien who enters on a B visa and violates status by working or studying but who departs prior to his/her period of authorized stay (i.e., prior to the date stamped on the I-94)."). See also letter from H. Edward Odom, then-Chief, Advisory Opinions Division, Visa Services, U.S. Dep’t of State, to attorney Norman Plotkin (Apr. 14, 1997), reproduced in 74 Interpreter Releases 954 (June 9, 1997) (same answer in H-1B context); State Dep’t Cable No. 98-State-051296, supra note 9; State Dep’t Cable No. 99-State-105097 (June 7, 1999), reproduced in 4 Bender’s Immigration Bulletin 728 (July 1, 1999).

14 Memorandum from Paul Virtue, then-Acting INS Executive Associate Commissioner, to all field offices, Implementation of Section 212(a)(6)(A) and 212(a)(9) Grounds of Inadmissibility, File No. 96act.026, HQIRT 50/5.12 (Mar. 31, 1997), reproduced in 74 Interpreter Releases 578 (Apr. 7, 1997), and 2 Bender’s Immigration Bulletin 325 (May 1, 1997) (hereinafter INS March 31, 1997 Memo).

15 INA § 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii).

16 Memorandum from Paul Virtue, then-Acting INS Executive Associate Commissioner, to all field offices, Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act (Act), File No. 96ACT 043, HQIRT 50/5.12 (June 17, 1997), reproduced in 74 Interpreter Releases 1046 (July 7, 1997) (hereinafter INS June 17, 1997 Memo).

17 Memorandum from Paul Virtue, then-Acting INS Executive Associate Commissioner, to all field offices, Advance Parole for Aliens Unlawfully Present in the United States for More than 180 Days, File No. 96 Act #068, HQIRT 50/5.12 (Nov. 26, 1997), reproduced in 74 Interpreter Releases 1864 (Dec. 8, 1997) (hereinafter INS November 26, 1997 Memo).

18 Id.

19 INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A).

20 The American Immigration Lawyers Association (AILA) has written a position paper on this issue entitled Applicants for Adjustment Who Leave the U.S. on Advance Parole Do Not Trigger the Bars Under 212(a)(9)(B) (Dec. 15, 1997). For a copy, contact AILA, 1400 Eye Street, NW, Suite 1200, Washington, DC 20005, phone: 202-216-2400; Internet: http://www.aila.org.

21 INS Operations Instructions (OI) 214.2(j)(4), reprinted in 16 Gordon, Mailman & Yale-Loehr, supra note 2, at 596.

22 INS September 19, 1997 Memo, supra note 11.

23 8 C.F.R. § 214.2(f)(5)(i). See generally NAFSA: Association of International Educators, Position Regarding Grace Periods for Foreign Students and Scholars Who Interrupt or are Otherwise Prevented from Completing Their Programs Due to Unforeseen and Uncontrollable Circumstances, reprinted in 3 Bender’s Immigration Bulletin 285 (Apr. 1, 1998).

24 State Dep’t Cable No. 98-State-060539, supra note 9, at 30. See also State Dep’t Cable No. 99-State-105097, supra note 13.

25 USIA Policy Statement, 62 Fed. Reg. 19925–27 (Apr. 24, 1997).

26 INS September 19, 1997 Memo, supra note 11.

27 Id.

28 Id.

29 Id.

30 See also State Dep’t Cable No. 98-State-060539, supra note 9, at 28; State Dep’t Cable No. 99-State-105097, supra note 13.

31 INS September 19, 1997 Memo, supra note 11.

32 Draft Minutes of INS/AILA Teleconference (Dec. 11, 1997) (question and answer no. 21), reprinted in 17 AILA Monthly Mailing 190-91 (Feb. 1998).

33 INS September 19, 1997 Memo, supra note 11. See also State Dep’t Cable No. 98-State-060539, supra note 9, at 28; State Dep’t Cable No. 99-State-105097, supra note 13.

34 INA § 212(a)(9)(B)(i), 8 U.S.C. § 1182(a)(9)(B)(i).

35 INA § 212(a)(9)(B)(iii)(II), 8 U.S.C. § 1182(a)(9)(B)(iii)(II).

36 INA § 212(a)(9)(B)(iii)(I), 8 U.S.C. § 1182(a)(9)(B)(iii)(I).

37 INA § 212(a)(9)(B)(iii)(III), 8 U.S.C. § 1182(a)(9)(B)(iii)(III).

38 INA § 212(a)(9)(B)(iii)(IV), 8 U.S.C. § 1182(a)(9)(B)(iii)(IV).

39 Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160 (hereinafter NACARA).

40 Pub. L. No. 105-139, 111 Stat. 2644.

41 NACARA, supra note 39, § 202(d)(1).

42 INA § 240B, 8 U.S.C. § 1229c. See generally 5 Gordon, Mailman & Yale-Loehr, supra note 2, § 64.05.

43 8 U.S.C. § 1229c(a)(2).

44 8 U.S.C. § 1229c(b)(2).

45 INS March 31, 1997 Memo, supra note 14.

46 INS June 17, 1997 Memo, supra note 16.

47 State Dep’t Cable No. 98-State-060539, supra note 9, at 31A.

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

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

50 Letter from Pearl Chang, Chief, Residence and Status Services Branch, INS, to attorney Elliott Lichtman (Mar. 23, 1998), available on AILA InfoNet (file name: 8BC241.TXT), reprinted in 3 Bender’s Immigration Bulletin 437 (May 1, 1998). See also State Dep’t Cable No. 98-State-060539, supra note 9, at s 21, 31C.

51 INA § 240B(d), 8 U.S.C. § 1229c(d). The statute does not say from what point the 10 years is measured. The other forms of relief that are unavailable include cancellation of removal, voluntary departure, change of nonimmigrant classification, and registry.

52 Id.

53 INA § 212(a)(6)(B), 8 U.S.C. § 1182(a)(6)(B).

54 INA § 240(b)(7), 8 U.S.C. § 1229a(b)(7).

55 State Dep’t Cable No. 98-State-060539, supra note 9, at 18.

56 Id.

57 Id. at 31C.

58 INA § 212(a)(9)(B)(iv), 8 U.S.C. § 1182(a)(9)(B)(iv); INS June 17, 1997 Memo, supra note 16.

59 Memorandum from Michael Pearson, Executive Associate Commissioner, INS Office of Field Operations, to Regional Directors, File No. HQADN70/21.1.24-P (Mar. 3, 2000), reprinted in 77 Interpreter Releases 316 (Mar. 13, 2000).

60 8 C.F.R. § 208.18.

61 Letter from Pearl Chang, Chief, Residence and Status Services Branch, INS, to attorney Cyrus Mehta (Mar. 23, 1998), reproduced in 75 Interpreter Releases 462 (Mar. 30, 1998).

62 Id.

63 INA § 212(a)(9)(B)(iv)(III), 8 U.S.C. § 1182(a)(9)(B)(iv)(III).

64 State Dep’t Cable No. 98-State-051296, supra note 9, at 2. See also State Dep’t Cable No. 99-State-105097, supra note 13.

65 State Dep’t Cable No. 98-State-136916 (July 28, 1998), reproduced in 75 Interpreter Releases 1050 (Aug. 3, 1998).

66 See 8 C.F.R. § 214.2(j)(1)(ii) (describing 30-day grace period for J aliens).

67 AILA/USIA Draft Liaison Minutes (May 26, 1998) (question and answer no. 16) (copy on file with the author).

68 INS November 26, 1997 Memo, supra note 17. It should be noted that Form I-601 has not yet been revised to accommodate this waiver.

69 Id.

70 See generally 8 C.F.R. § 212.7(a); Carlina Tapia-Ruano & Royal Berg, Where and When Can I Apply for a Waiver of Inadmissibility?, 17 AILA Monthly Mailing 451 (May 1998).

71 Matter of Pilch, Int. Dec. 3298 (BIA 1996). For a good general discussion of extreme hardship in the caselaw, see Bruce Hake, Hardship Waivers for J-1 Physicians, 94-2 Immigration Briefings (Feb. 1994).

72 16 I. & N. Dec. 596 (BIA 1978).

73 Int. Dec. 3280 (BIA 1996).

74 Matter of [name not provided], File No. [not provided] (AAO Jan. 12, 2000), available online at <http://www.ins.usdoj.gov/graphics/aboutins/foia/ereadrm/reference/
admindec/Z/2000/Jan1200_01Z212.pdf> (visited Dec. 2, 2000).

75Matter of Cervantes-Gonzalez, Interim Decision No. 3380 (BIA 1999).

76 Carnalla-Munoz v. INS, 627 F.2d 1004 (9th Cir. 1980).

77 Perez v. INS, 96 F.3d 390 (9th Cir. 1996).

78 Matter of [name not provided], File No. [not provided] (AAO Jan. 12, 2000), available online at <http://www.ins.usdoj.gov/graphics/aboutins/
foia/ereadrm/reference/admindec/Z/2000/Jan3100_04Z212.pdf> (visited Dec. 4, 2000).

79 INS November 26, 1997 Memo, supra note 17.

80 Matter of Hranka, 16 I. & N. Dec. 491 (BIA 1978); 9 U.S. Dep’t of State, Foreign Affairs Manual, Note 3 to 22 C.F.R. § 40.301. See generally 5 Gordon, Mailman & Yale-Loehr, supra note 2, § 63.12[2].

81 8 U.S.C. § 1182(a)(9)(A).

82 8 U.S.C. § 1182(a)(9)(C).

83 INA §§ 212(a)(9)(A)(iii), 212(a)(9)(C)(ii), 8 U.S.C. §§ 1182(a)(9)(A)(iii), 1182(a)(9)(C)(ii). For a good general discussion of this issue, see Paul Parsons, Permission to Reapply for Admission into the United States After Deportation, in 2 American Immigration Lawyers Association, 1990 Immigration & Nationality Law Handbook 427 (R. Patrick Murphy, et al. eds., 1990) (collecting administrative decisions).

84 9 U.S. Dep’t of State, Foreign Affairs Manual Part IV Appendix N, § 402, and in Notes 4 and 5 to former 9 FAM 40.61 (covering former INA § 212(a)(6)(A)).

85 8 C.F.R. § 212.2(f).

86Carlina Tapia-Ruano & Royal Berg, Where and When Can I Apply for a Waiver of Inadmissibility?, 17 AILA Monthly Mailing 451 (May 1998).