Confusion is rife when it comes to the topic of unlawful presence in the United States, as is on how long an offending alien has to wait before re-entering the United States. At the most basic level, an alien is unlawfully present when they have entered the United States without being admitted or paroled, or when they have overstayed a lawful entry. While some may believe that once an alien is unlawfully in the United States that they automatically become inadmissible to re-enter the Unites States, this is not necessarily the case, nor is it the full story. There are three categories for aliens who are unlawfully present: those who depart before 180 days of unlawful presence, those who depart before 1 year, and those who depart after a year. Certainly, once unlawfully present, the alien must leave the United States, but it isn’t until the alien has stayed unlawfully in the United States for at least 180 days that he or she becomes automatically barred from re-entry. If the alien departs the United States before six months have passed, then he can still potentially re-enter. Of course, since the person’s visa may have been automatically cancelled, he or she may need to apply for a new visa. However, if the alien stays unlawfully for six months or more, then the rules change. If an alien leaves the United States from that point on, but less than one year, he or she is barred for three years from re-entry. After those three years have passed, there is no automatic bar. If the alien does not voluntarily depart after staying in the United States unlawfully for over a year, the length of time barred increases to ten years. It should be noted that because Canadian citizens do not receive I-94s when they enter the United States, they will only be unlawfully present if the Department of Homeland Security or an immigration judge determines that they have failed to maintain their status. Much of the confusion arises on how and when the unlawful presence bar interacts with immigration claims. Should you be concerned on how this will interact your status, then it is imperative to contact a legal professional. But in general, if an alien has entered the United States legally, and makes a non-frivolous request to extend his lawful status, then unlawful presence does not begin to accrue. Likewise, a pending Asylum claim will also prevent unlawful presence from accruing, so long as the alien was not unlawfully employed. If employment authorization has not been granted, then even a single day of employment will cause unlawful presence to accrue. However, appealing a denied petition does not toll unlawful status, and thus it will accrue. One of the worst situations that an alien can find him or herself in is when he or she has been charged as removable, and fails to attend the court hearing. In that case, if the alien fails to appear, then he or she will become inadmissible for 5 years. Additionally, any time spent in the United States beyond what was initially authorized will count towards unlawful presence. It is also important to understand that seeking and being granted voluntary departure from the Immigration Judge does not relieve or erase an unlawful presence problem: it only avoids the stigma of a removal order, which is different and separate from the three and ten year unlawful presence bars to admissibility.
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