Penalties and Bars to Reentering the United States and to Adjusting Status

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Few areas confuse folks more than the penalties that bar adjustment of status and entry to the United States. Understanding available penalties, waivers and exceptions requires expert analysis

Foreign nationals often face immigration penalties for past immigration violations.  Many penalties overlap and have complicated triggers.  The exceptions and waivers to these penalties likewise have complicated exceptions and sometimes do not apply to situations that lawyers and their clients expect them to. Below is a table of common penalties for immigration violations including orders of removal, unlawful presence followed by a departure, unlawful entry into the United States and illegal reentery or attempted reentry after periods of unlawful presence or a removal order.
 

Unlawful Act or Order Penalty Citation

Expedited Removal Order

5 years

INA 212(a)(9)(A)(i)

Regular Removal Order

10 years

INA 212(a)(9)(A)(ii)(I)

Depart while removal order outstanding

10 years

INA 212(a)(9)(A)(ii)(II)

180 days or more unlawful presence and depart

3 years

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

One year or more unlawful presence and depart

10 years

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

More than one year aggregate unlawful presence, depart and illegal or attempted illegal reentry

Lifetime Bar

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

Removal order, departure and illegal or attempted illegal reentry

Lifetime Bar

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

A special waiver is available for VAWA self-petitioners if there is a connection between the alien's battering or subjection to extreme cruelty and the alien's removal, departure from the United States, reentry or reentries into the United States or attempted reentry into the United States.  INA 212(a)(9)(C)(iii).

The law bars an alien who entered the United States without inspection from adjusting status to permanent resident.  The law also bars an alien who has worked without authorization, overstayed an authorized period of stay, or otherwise violated the terms of his status from adjusting status to permanent resident.  There are three main exceptions to this rule:

  1. Immediate relatives of US citizens (the spouse, parent, or child of a US citizen) are excepted from the adjustment bars for overstaying an authorized period of stay, working without authorization and other status violations, but they are not excepted from the bar for entry without inspection
  2. Aliens who are the beneficiary of an I-140 employment-based immigrant petition are excepted from the adjustment bars for overstaying an authorized period of stay, working without authorization and other status violations but only if the cumulative violations since the alien's last lawful admission occurred for 180 days or less and this exception does not apply to the bar for entry without inspection
  3. Aliens who were the beneficiaries family or employment-based petitions (including labor certification applications) filed on or before April 30, 2001 and that were "approvable when filed" - this exception under INA 245(i) waives overstays, work without authorization and entry without inspection

None of these three exceptions or waivers apply to an illegal entry or attempted illegal entry after one year or more of unlawful presence or after an order of removal.  The only potential waiver for a person who accrues a year or more of unlawful presence and who illegally reenters the United States or attempts to is by application for a waiver of the lifetime bar after the alien departs the United States and has remained outside for 10 years. INA 212(a)(9)(C)(ii).

Because the unlawful presence bars only arise when the alien departs the United States, an alien subject to an unlawful presence bar must find an available exception or waiver, or a way to adjust status without departing.  If an exception, waiver or way to adjust without departing is unavailable, the alien must depart the United States and wait outside for 10 years before applying for a waiver to reenter - and there is no guarantee that the Secretary of Homeland Security will grant that waiver after the alien waits outside for 10 years.  An alien who has overstayed, worked without status, or violated the terms of her status in the United States and who is not eligible for an exception to the bar may include the beneficiary of a petition filed after April 30, 2001 by a permanent resident spouse, or a US citizen brother, or a US citizen spouse if the alien spouse entered the United States without inspection.

Three obscure tricks can get an alien out of the otherwise intractable bar to adjusting status after having entered without inspection:

  1. A U visa - those eligible for U visas are not barred by past immigration violations, removal orders nor traditional bars to adjustment of status (read more about U visas here); U visas are for the victims of violent crimes that occurred in the United States and who assisted law enforcement in the investigation and/or prosecution of the crime
  2. Parole-in-Place - this is widely available for the spouses, children and parents of US Armed Forces personnel including those honorably discharged servicemembers; parole-in-place is a type of permission to enter the United States that USCIS in its sole discretion may give to a person who entered the United States illegally - once an alien who entered illegally has parole-in-place, she may apply to adjust status
  3. Advance Parole for Deferred Action Recipients - the Board of Immigration Appeals held that an alien in deferred action who USCIS grants advance parole: (a) does not "depart" for the purpose of the three and ten year bars when she leaves the United States while the advance parole is valid, and (b) makes a lawful entry with inspection at the time she enters with advance parole; this benefit is most commonly obtained by DACA beneficiaries who may apply for advance parole to visit a sick relative, or for a purpose related to work or school, depart the United States, reenter with advance parole and then adjust status without being subject to the entry without inspection bar to adjustment and also without being subject to the unlawful presence bar.  For more information about this interesting strategy, read Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)
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