En esta noticia
The Immigration and Nationality Act (INA) is the main legal framework governing immigration in the United States. Its provisions are set out primarily in Title 8 of the U.S. Code (U.S.C.) and cover a range of immigration policy issues.
Among the issues this legal framework addresses are the unlawful presence of foreigners in the country, the immigration consequences this situation can trigger and the penalties that may apply in certain circumstances.
How does USCIS define “unlawful presence”?
According to the INA, “a foreigner is considered unlawfully present in the United States if the person remains in the country after the period of stay authorized by the Attorney General expires or if the person remains in the United States without having been admitted or paroled.”
When a person overstays the permitted period or remains in the country without any type of authorization, after a certain number of days that person could be considered “inadmissible” because of accrued unlawful presence.
What time periods does the INA set for applying this bar?
According to 8 U.S.C. § 1182(a)(9)(B), there are two time periods that carry different bars:
- If the foreigner remained unlawfully in the United States for more than 180 days but less than one year: the person will not be admissible for three years from the date of departure.
- If the foreigner remained unlawfully in the United States for one year or more: the person will not be admissible for 10 years.
In what context does this section of the INA apply?
In the first case, the law applies when the foreigner leaves the country voluntarily, before expedited removal proceedings (without a court hearing) or regular removal proceedings (with a court hearing) are applied.
In the second, it applies regardless of whether the person was removed or left the country voluntarily. However, both are triggered when the foreigner records a departure from U.S. territory.
What must be done to re-enter the United States once the bar period has passed?
Once the three- or 10-year bar period has passed, the person is no longer inadmissible for that specific reason.
However, that does not mean the person can enter the country automatically, since the expiration of these grounds of inadmissibility does not eliminate others. To return legally, the person must:
- Verify that the applicable bar period has ended.
- Apply for a U.S. visa, if one is needed, depending on the purpose of the trip.
- Meet the immigration requirements of the category requested.
- Pass the consular review and immigration inspection upon arrival in the United States.