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. Last Updated: 07/27/2016

Visitors Illegally in U.S. Must Leave or Face Bar

For many people who are in the United States illegally, Sept. 27 will be the deadline to leave or be barred from making a legal re-entry for several years.

Last year, a new U.S. immigration law imposed new penalties on people residing illegally in the United States. One important provision bars re-entry for three years to persons who have been "unlawfully present" in the United States for more than 180 days. Those who have been unlawfully present for a year or more are barred for 10 years.

Under the new law, a person is considered "unlawfully present" when he or she remains beyond the period of stay authorized by the Immigration and Naturalization Service inspector granting admission to the United States. (It is important to note that this period will likely be different from the length of time for which one's visa is valid.) Under a controversial official INS interpretation, unlawful presence is also triggered by engaging in any activity prohibited under the terms of one's visa, such as accepting unauthorized employment.

Days started counting toward the new bars April 1. Therefore people unlawfully present since then will have to depart the United States before Sept. 28 to avoid the three-year bar to re-entry. To avoid the 10-year bar, they will have to depart before April 1, 1998. There are some exceptions, and the U.S. Immigration and Naturalization Service has confirmed that it interprets the bars as being triggered only by a continuous period of unlawful presence. Thus, if one leaves the United States before 180 consecutive unlawful days accrue, the accumulated days will not be counted in the future.

The primary effect of these bars is to prevent people from attaining legal status after having remained illegally for an extended period of time. Under U.S. law the only way most people can regain legal status after even one day of unlawful presence is to apply for a new visa at a U.S. consulate abroad. Now, leaving the country after an extended period of unlawful presence triggers one of the bars, and any subsequent visa application will be denied.

Under a special provision in U.S. immigration law, one group of persons could theoretically avoid the effect of these new bars -- those who are unlawfully present but otherwise immediately eligible for permanent residency. Since such persons may pay a fine (currently $1,000) instead of applying abroad for a visa, they need not trigger the bars by leaving the United States. However, unless the U.S. Congress passes a law extending this provision, it will "sunset" Oct. 1 of this year.

Attorney Sean Walgren specializes in U.S. immigration law at the offices of Firestone Duncan.