Aliens who are in the United States, but do not hold permanent residency status, accrue unlawful presence. Unlawful presence may lead to inadmissibility under the three- or ten-year bars and even the permanent bar. Additionally, other types of aliens may be inadmissible for a period of time as well, but this article will focus specifically on those barred from reapplying.
An alien is inadmissible for three years if the individual was unlawfully present in the U.S. for more than 180 days but less than one year and if he or she voluntarily departed the U.S. prior to the initiation of removal proceedings.
An alien is inadmissible for ten years if the individual was unlawfully present in the U.S. for one year or more, and is seeking admission now within ten years of his or her departure or removal from the U.S. This bar does not apply to VAWA (Violence Against Women Act) self-petitioners, such as domestic abuse victims, if the abuse is related to the possibility of deportation.
An alien is inadmissible if he or she was unlawfully present in the U.S. for an aggregate of one year, and entered or attempted to enter without lawful admission. If the alien has resided outside the U.S. for ten years, then he or she falls within an exception to the general rule and may reapply for admission.
Other exceptions may apply to these bars despite those described above.
Differences between “Unlawful Presence” and “Unlawful Status”
To properly calculate accrual of unlawful presence time related to the time bars, one must understand the distinction between unlawful presence and unlawful status. Although an individual must have unlawful status to accrue unlawful presence, actions such as filing a petition may stop the clock on unlawful presence until the application is adjudicated. Furthermore, an alien with lawful status will not accrue unlawful presence.
Triggering the Three- and Ten-Year Bars
An alien must leave the U.S. to trigger the three- and ten-year bars after accruing more than either 180 days or 1 year or more respectively. The bars are triggered even if the alien departs with advance parole or a valid refugee document. The advance parole and refugee document are only a means for an alien to depart the U.S. and not to be understood as an authorized departure. Advance parole may affect the applicability of the permanent bar however.