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The ABCs of Immigration - Inadmissibility - Previous Deportation or Unlawful Presence
by Greg Siskind and Amy Ballentine

A person who was placed in deportation proceedings upon their entry to the US and was ordered deported is inadmissible for a minimum of five years. After a second such deportation, the period of inadmissibility is 20 years. Those who have ever been convicted of an aggravated felony are permanently inadmissible to the US. If the person subject to the deportation order left the US without allowing the deportation to occur, they are inadmissible for 10 years. Again, if it is a second deportation, the period of inadmissibility is 20 years, and if the person has been convicted of an aggravated felony, they are permanently inadmissible.

Along with the above ground of inadmissibility, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act created the concept of “unlawful presence” and made it a ground of inadmissibility. People who have been unlawfully present in the US for more than 180 days but less than one year are subject to a three year bar on admission, while those who have been unlawfully present for more than a year are inadmissible for ten years. Also, those who have been unlawfully present for more than one year, were deported, and then seek to reenter the US without authorization are permanently inadmissible.

While the 3/10 year bar, as it is commonly known, seems straightforward, issues involved in determining exactly what constitutes unlawful presence make it more complicated. The relevant statute (Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act) defines unlawful presence as presence "in the United States after the expiration of the period of stay authorized by the Attorney General or [presence] in the United States without being admitted or paroled." The INS has not issued regulations to further define the concept, providing only memoranda on the issue, essentially saying that a person begins accruing unlawful presence when they remain in the US past the expiration date of their I-94. Unlawful presence can also be accrued if, in deportation proceedings, the immigration judge determines that there has been a status violation. Those entrants who do not have a date on their I-94, but are instead admitted for the duration of status (primarily students) do not accrue unlawful presence until the INS rules that they have violated their status.

An applicant who was formally admitted or paroled into the US and timely files an application to extend or change their status is given a 120 day grace period following the date on the I-94 during which no unlawful presence will accrue.

There are some exceptions to the 3/10 year-bar. So long as a person is under 18, they will not accrue unlawful presence. People with a bona fide pending asylum application do not accrue unlawful presence, nor do beneficiaries of the family unity program. Other groups that do not accrue unlawful presence include people with pending application for adjustment of status, people in temporary protected status, and people under a grant of deferred enforced departure.

It is possible to obtain a waiver of the 3/10-year bar. To do so, the applicant must demonstrate that if the waiver is not granted, their US citizen or lawful permanent resident spouse or parents would suffer extreme hardship. While this standard is nowhere defined, cases make it clear that the hardship required will not be found in many cases.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


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