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INS Memo on Unlawful Presence -- September 19, 1997



Subject:	Section 212(a)(9)(B) Relating to Unlawful Presence

Date:		September 19, 1997

To:		All Regional Directors
All District Directors (Including Foreign)
All Officers in Charge (Including Foreign)
All Port Directors
All Service Center Directors
All Training Academics (Glynco and Artersia)
All Regional Counsels
All District Counsels
All Asylum Directors

From:		Office of Programs

	This memorandum addresses section 212(a)(9)(B) of the Immigration and 
Nationality Act (Act), as amended by section 301(b) of the Illegal 
Immigration and Immigrant Responsibility Act (IIRAIRA).  This memorandum 
modifies the guidance provided in the Service’s interim memoranda (96 Act 
#043, dated June 17, 1997; 96 Act #026 dated March 29, 1997).  The modified 
guidance covers the following issues: (1) whether an alien granted 
voluntary departure is considered to be in a stay authorized by the 
Attorney General; (2) what constitutes an authorized period of stay for 
nonimmigrants; and (3) whether time spent in proceedings counts toward 
calculating the alien’s period(s) of unlawful presence in the United 
States. This memorandum also provides guidance on unlawful presence with 
respect to alien spouses and children granted conditional permanent 
residence under section 216 of the Act, and alien entrepreneurs and their 
spouses and children granted conditional permanent residence under section 
216A of the Act.

	Voluntary Departure.  The Service’s March 29 memorandum stated that 
“the grant of voluntary departure by the Service or an immigration judge 
will not stop the running of time ‘unlawful presence’ .”  The Service’s 
June 17 memorandum further stated that aliens granted voluntary departure 
prior to, during, or following proceedings are not considered to be in the 
United States in a period of stay authorized by the Attorney General. The 
Service has reversed this interpretation of unlawful presence with respect 
to voluntary departure.  Under the revised interpretations, voluntary 
departure is considered a period of stay authorized by the Attorney 
General, regardless of whether it is granted by the Service prior to the 
commencement of proceedings, by an immigration judge at the end of 
proceedings, or by the Board of Immigration Appeals after an appeal.  If 
the immigration judge grants the alien voluntary departure with an 
alternate order of removal, and the alien fails to depart by the date 
specified, unlawful presence accrues as of the date the privilege of 
voluntary departure expires[1]
and the order of removal takes effect.

	Authorized Period of Stay for Nonimmigrants.   The Service’s March 29, 
1997, memorandum stated that time unlawfully present was interpreted “to 
include any time spent in the United States by aliens after they have 
violated the terms and conditions of any form of nonimmigrant status, 
because time spent in violation of status is not authorized.”  The March 29 
memorandum stated that unlawful presence is also triggered by the 
commission of a criminal offense that renders an alien inadmissible or 
removable.  The Service has modified this position on the interpretation of 
“unlawful presence” for nonimmigrants, for purposes of applying Section 
212(a)(9) of  the Act. The discussion below interprets “unlawful presence” 
only for purposes of that paragraph of the Act.  It must be emphasized that 
an alien may still be considered unlawfully present or in violation under 
other provisions of the Act (e.g. for purposes of initiating a removal 
proceeding) even though he or she in not deemed unlawfully present under 
the technical requirement of Section 212(a)(9)(B)(ii).

	Under the modified interpretation, unlawful presence with respect to a 
nonimmigrant includes only periods of stay in the United States beyond the 
date noted on Form I-94, Arrival/Departure Record.  Unlawful presence does 
not begin to run from the date of a status violation (including 
unauthorized employment).  Unlawful presence for a nonimmigrant may begin 
to accrue before the expiration date noted on the I-94, however, in two 
circumstances: (1) when an immigration judge makes a determination of a 
status violation in exclusion, deportation or removal proceedings, or (2) 
when the Service makes such a determination during the course of 
adjudicating a benefit application.  In cases where the immigration judge 
finds there was a status violation, unlawful presence begins to accrue as 
of the date of the order of the immigration judge, whether or not the 
decision is appealed. (If the judge grants voluntary departure, however, 
the voluntary departure period is not considered unlawful presence).  See 
the discussion below on Treatment of Time Spent While in Proceedings, 
Nonimmigrants.  A Service determination of status violation may arise for 
example, during the adjudication of an application for extension of 
nonimmigrant stay or reinstatement of bona fide nonimmigrant status 
pursuant to 8 CFR 214; change of nonimmigrant classification pursuant to 8 
CFR 248; employment authorization for certain nonimmigrants who are 
maintaining such status pursuant to 8 CFR 274a.12(c); or adjustment of 
status pursuant to 8 CFR 245.  In the case of a Service determination of a 
nonimmigrant status violation, unlawful presence will begin as of the date 
of the decision denying the immigration benefit, whether or not appealed.

	Moreover, the mere commission or conviction of a criminal offense does 
not trigger unlawful presence for a nonimmgrant who has not remained beyond 
the period of stay authorized on Form I-94.  An immigration judge must have 
found the alien removable during the course of proceedings based on such an 
offense for the alien to be considered unlawfully present.  In such a case, 
unless the immigration judge grants voluntary departure, unlawful presence 
will begin to accrue as of the date of the order of the immigration judge, 
whether or not the decision is appealed. 

	Treatment of Time Spent While in Proceedings.  Time spent as an alien 
in proceedings before an immigration judge or higher appellate authority is 
not a period of stay authorized by the Attorney General.  The following 
paragraphs provided further details on how this principle is to be applied.

  Entrants Without Inspection:  In the case of EWIs, unlawful presence 
begins to accrue as of the date the alien entered the United States 
without admission or parole.  Unlawful presence continues to accrue 
while such an alien is in proceedings.

  Nonimmigrants:  When a nonimmigrant bearing a date-certain Form I-94 
remains in the United States beyond the date noted on that form, 
unlawful presence begins to accrue as of the date the I-94 expired.  A 
nonimmigrant bearing a date-certain From I-94 who is placed in removal 
proceedings will not begin to accrue time unlawfully present until the 
date noted on Form I-94 has been reached or the immigration judge orders 
the alien to be removed, whichever is earlier.

  Parolees:  When a parolee remains in the United States beyond the period 
of parole authorized by the Attorney General, unlawful presence begins 
to accrue as of the date the parole authorization expired.  If, however, 
the parole authorization was revoked or terminated prior to the date it 
was due to expire, unlawful presence begins to accrue as of the date of 
revocation or termination.  An alien paroled for the purpose of removal 
proceedings will not accrue time unlawfully present until the 
immigration judge orders the alien to be removed (whether or not the 
decision is appealed).

  The Alien Successfully Contests the Ground of Inadmissibility or 
Removability:  When an alien successfully contests the charges of 
inadmissibility or removability brought by the Service in a proceeding, 
the alien will be deemed not to have accrued any periods of unlawfully 
presence in the United States during the pendency of the proceeding.  If 
the admission period expired during the course of proceedings, unlawful 
presence begins to accrue as of the date of the order.

  The Service Contests the Relief Granted to the Alien by the Immigration 
Judge:  When the immigration judge finds the alien inadmissible under 
section 212 of the Act or removable under section 237 of the Act, but 
grants the alien a form of relief that has been contested by the 
Service, for example, cancellation of removal, the period of unlawful 
presence ceases to accrue, as of the date the relief is granted by the 
immigration judge.  If, however, the Service prevails on appeal, 
unlawful presence begins to accrue once again, as of the date the 
decision on appeal was made in favor of the Service.

	Conditional Permanent Residents.  An alien granted status as a 
conditional permanent resident under section 216 or 216A of the Act who 
does not timely file a petition (Form I-751 for spouses and children of 
U.S. citizens and lawful permanent residents, and Form I-829 for alien 
entrepreneurs and their spouses and children) to remove the conditions 
placed on that status is unlawfully present in the United States.  Failure 
to make a timely filing results in the automatic termination of the alien’s 
status.  8 CFR Section 216.4(a)(6) and 8 CFR Section 216.6(a)(5).  
Therefore, an alien who does not properly file Form I-751 or Form I-829 
prior to the expiration of conditional permanent resident status has 
remained in the United States for longer than the period authorized by the 
Attorney General.  Unlawful presence therefore begins to accrue as of the 
date the conditional status as a lawful permanent resident expires.

	There are provisions in the regulations that allow the Service to 
accept a late Form I-751 or I-829 before jurisdiction vests with the 
immigration judge, if the alien can establish that failure to make a timely 
filings was for good cause.  Alien entrepreneurs and their dependents who 
make a late filing must also establish there were extenuating 
circumstances.  In these cases, the Service can approve the petition, 
restore the alien’s status, and cancel any outstanding notice to appear.  
When jurisdiction vests with the immigration judge, the immigration judge 
may terminate the matter upon joint motion by the alien and the Service. 
Id.  Therefore, when a late filing is accepted by the Service or the 
immigration judge and the alien’s status has been restored, the alien will 
not be considered to have accrued any periods of unlawful presence in the 
United States.  When the late filing is not accepted, however, the period 
of unlawful presence begins to accrue as of the date the alien’s status as 
a conditional permanent resident expired.

	In contrast, when the Service seeks to revoke an alien’s conditional 
status as a lawful permanent resident during the 2-year period for cause, 
the alien continues to enjoy all the rights and privileges of a lawful 
permanent resident until such time as that status is formally terminated by 
the Service.  See 8 CFR Section 216.3(a).  In such cases, unlawful presence 
will begin to accrue as of the date the Service actually terminates the 
alien’s status as a lawful permanent resident.

	If there are any additional questions, contact Joanna London, 
Assistant General Counsel, Office of the General Counsel, 202/514-2895, or 
Sophia Cox, Adjudication Officer, Headquarters Benefits Division, at 
202/514-5014.

Paul W. Virtue
Acting Executive Associate
Commissioner

Footnote:

[1]	Section 240B(a)(2) of the Act limits to 120 days the period of 
voluntary departure that may be granted to an alien prior to the completion 
of proceedings.  Section 240B(b)(2) of the Act limits to 60 days the period 
of voluntary departure that may be granted to an alien by an immigration 
judge at the conclusion of proceedings.  There are significant penalties 
imposed on aliens who fail to depart the United States voluntarily by the 
date specified.  Section 240B(d) provides that an alien who fails to comply 
with an order permitting voluntary departure: (1) shall be subject to a 
civil monetary penalty of no less than $1,000 but not more than $5,000;and 
(2) shall be ineligible for any further grant of voluntary departure or 
relief under sections 240A, 245, 248 and 249 for 10 years.


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