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Bans on Re-Entry



As criminal defense lawyers, we are primarily focused on what types of criminal convictions can result in admissibility and an inability to return to the US with a lawful status. However for our undocumented clients, or clients that no longer have a lawful status, the length of time they have been in the United States without a lawful status can trigger bans on re-entry in the United States, even if after they leave, and they have a lawful way to return.  For example, many of our undocumented clients could qualify for a lawful status, such as permanent residency based on familial relationships to U.S. Citizens or lawful permanent residents. But, depending on their immigration history including periods of unlawful presence, they are banned from re-entering even with said relationship and are therefore inadmissible. Section 212(a)(9)(B) of the Immigration and Nationality Act (INA), imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully. Unlawful presence is accrued when a person entered the US without inspection (permission) and/or overstays a period of authorized admission. Waivers are available under certain circumstances. The Chart below serves as a quick-reference guide that explains the different types of bans on re-entry. This chart does not address other types of bans on re-entry that are conduct-based such as bans triggered by criminal convictions, immigration fraud, smuggling, and failing to appear in court for an immigration hearing.

Federal INA Statute

Length of Ban

Inadmissibility Trigger

Ban to Apply

Waivers Applicable

 

Section 212(a)(9)(B)(i)(I)

3 years

Beginning on April 1, 1997, an immigrant unlawfully present in the US for a continuous period of  more than 180 days but less than 1 year during a single stay, and then voluntarily leaves before the filling of immigration (removal) proceedings

Ban is triggered upon departure.Individual must have departed prior to the filing of a Notice to Appear (NTA) with the immigration court. The bar does not apply if accrued more than 180 days but less than 1 year of unlawful presence and leaves after the NTA is filed.  To avoid future inadmissibility must leave prior to accruing 1 year of unlawful presence because if not, 10 year ban below triggered

I-601 waiver[1] possible under INA 212(a)(9)(B)(v) [2]

 

Section 212(a)(9)(B)(i)(II)

10 years

Beginning on April 1, 1997, an immigrant unlawfully present in the US continuously  for 1 year or more, in a single stay, then voluntary leaves or has been removed

Ban is triggered upon departure. Ban applies whether a person leaves before, during or after removal proceedings, or simply departs voluntarily not under any formal proceedings.

I-601 waiver1 possible  under 212(a)(9)(B)(v)2

 

Section 212(a)(9)(C)(i)(I)

Permanent

Beginning on April 1, 1997, an immigrant unlawfully present in the US for an aggregate period[3] of more than 1 year[4] and who attempts to enter or re-enters the US w/o being admitted

Ban applies when a person attempts to enter or reenters without permission/inspection

I-212[5] application to request consent to reapply for admission  available after having been outside the U.S. for 10 years. (also there are possible exceptions under VAWA or for U status

 

Section 212(a)(9)(C)(i)(II)

Permanent

Beginning on April 1, 1997, an immigrant who has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the US without being admitted.

.

Ban applies when a person attempts to enter or reenters without permission/inspection

I-212 application to request consent to reapply for admission available after having been outside the U.S. for 10 years (also there are possible exceptions under VAWA or for U status)

 

 



[1] the elements of the I-601 waiver: (1) show extreme hardship to qualifying US citizen or LPR spouse or parent if denied waiver; (2) warrants favorable exercise of discretion

[3]Aggregate period” means the total number of days of unlawful presence that you accumulated during all of your stays in the United States combined.

[4] Unlawful presence is counted in the aggregate (multiple stays add up to more than 1 year)

[5] INA 212(a)(9)(C)(ii)