INA 212(a)(9)(B) – Unlawful Presence – Section 212(a)(9)(B)

INA 212(a)(9)(B)

Unlawful Presence

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212(a)(9)(B) Unlawful Presence

What is a grounds of inadmissibility?

In order for a foreign national to be admitted to the United States, he or she must be admissible.  A foreign national can be deemed inadmissible to the United States by USCIS, CBP and a Consulate.  If the foreign national is deemed inadmissible due to the United States, he or she cannot enter without a waiver of inadmissibility or a determination that the inadmissibility charge was made in error.

212(a)(9)(B) Inadmissibility due to Unlawful Presence

Any foreign national who was unlawfully present in the US for more than 180 days is inadmissible for three years and if unlawfully present for one year, is inadmissible for ten years.

Any alien (other than an alien lawfully admitted for permanent residence) who was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States and again seeks admission within 3 years of the date of such alien’s departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States is inadmissible.

No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States.

No period of time in which an alien has a bona fide application for asylum pending shall be taken into account in determining the period of unlawful presence in the United States unless the alien during such period was employed without authorization in the United States.

No period of time in which the alien is a beneficiary of family unity protection shall be taken into account in determining the period of unlawful presence in the United States.

This section shall not apply to VAWA petitioners.

This section shall not apply to an alien who demonstrates that the severe form of trafficking was at least one central reason for the alien’s unlawful presence in the United States.

How to obtain a determination that the 212(a)(9)(B) ground of inadmissibility was incorrectly made.

No matter which US government agency made the inadmissibility determination, each provides a method to dispute the determination, though each has drastically different processing times.  We have achieved successful outcomes by petitioning the US Department of State where the determination was made by the Consulate in as little as 2 weeks.  CBP quotes turnaround times of as little as 30 days and USCIS will not offer a time frame.  In our experience, the more difficult the situation, the longer it will take to get resolved.

USCIS Memo Relating to INA (a)(9)(B)

DateTitleDescription
January 24, 2014Guidance Pertaining to Applicants for Provisional Unlawful Presence Waivers.This field guidance addresses the adjudication of Form I-601A, Application for Provisional Unlawful Presence Waiver in cases involving applicants with criminal history.

How to obtain a 212(a)(9)(B) waiver

There are two types of waivers that apply to each grounds of inadmissibility: one for immigrants and one for nonimmigrants. Immigrants are foreign nationals who are trying to obtain an immigrant visa or green card. Nonimmigrants are foreign nationals who are trying to obtain or enter with a temporary visa such as a B2 tourist visa, F1 student visa or H1B work visa, among others. Some grounds of inadmissibility allows both immigrant and nonimmigrant waivers, some allow one and some offer no waiver at all.

Many people who are faced with a inadmissibility determination believe that they will never be able to obtain a waiver or enter the US again. This is simply not true. For almost all types of inadmissibility classes, a waiver is available and there is always an option to challenge the determination. We have successfully helped many clients who were determined to be inadmissible and we can assist you. We believe that with the right approach, there is always a hope to win your case.

Nonimmigrant Waiver

A nonimmigrant waiver can be issued for a one year term (five year term in limited circumstances) where the foreign national is eligible for a nonimmigrant visa and can establish his or her presence would not be harmful to US interests.  When the application for the waiver is made, normally at the Consulate the will issue the nonimmigrant visa, the Consular officer will consider the following factors when deciding whether or not to issue the visa

  1. The recency and seriousness of the activity or condition causing the inadmissibility;
  2. The reasons for the proposed travel to the US; and
  3. The positive or negative effect, if any, of the planned travel on US public interests.

Immigrant Waiver

212(a)(9)(B)(v) offers an immigrant visa waiver where the foreign national is the spouse or child of a USC/LPR and can establish that this relative will suffer extreme hardship if he or she is refused admission to the US.

Paths for a Waiver of Inadmissibility

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