AILA 2002 Conference Report : Unlawful Presence Regs Expected
Posted Jun 28, 2002

The Immigration and Naturalization Service (INS) expects to be issuing regulations on the concept of “unlawful presence” within the next few months. INS General Counsel, Owen "Bo" Cooper, made this significant announcement at the American Immigration Lawyers Association (AILA) Annual Conference, held in San Francisco, June 2002.

Unlawful presence is an important subject in immigration law. Essentially, persons unlawfully present in the U.S. for more than 180 days are barred from reentering the U.S. for three years. Those who are unlawfully present in excess of a year are barred from reentry for ten years. Both reentry bars are triggered upon departure from the U.S. Unlawful presence is a different, narrower concept than that of one's being "out of status." Unlawful presence, under current interpretation, is counted from either the date of the expiration of the authorized period of stay indicated on the I-94 (arrival / departure card) or at the time the INS or Immigration Judge determines the person to be out of status. For example, a person could be out of status as an H1B after having been laid off from work but, unless the INS or the Immigration Judge makes a specific ruling regarding the individual's status, the person is not unlawfully present until the I-94 expires.

There are two main questions regarding the concept of unlawful presence. The first is, which events trigger the start of the unlawful presence period? The second is, which events stop or "toll" the counting of the time toward unlawful presence? These important matters are mainly set forth in a piecemeal fashion in INS memoranda. However, INS has indicated it intends to issue a regulation that will cover this situation – a claim they have made for many years. However, as explained by General Counsel Cooper, they were trying to regulate the entire section of law that includes the unlawful presence bars to reentry. This was simply too large and complex a provision to regulate at one time. For that reason, the regulation is being broken into seven portions, the first portion addressing unlawful presence.

The regulation will also address the related issue of visa cancellation under INA Section 222(g). Under this provision, the visa of a person who overstays his/her authorized period of stay as set forth on the I-94 is automatically canceled at the conclusion of the I-94 period. This occurs without notification. We covered the consequences of this matter last week (June 21, 2002) in our article, Reminder, Overstay Can Cancel Multiple Entry Visa, available on MurthyDotCom.

While the General Counsel did not give any specific sign as to the content of the regulation, the political environment indicates that the regulation may seek to eliminate any perceived loopholes in the current interpretation of unlawful presence. In light of heavy enforcement efforts directed toward students, there may be some tightening of the definition of categories when I-94s are given with the notation D/S (duration of status), rather than a set expiration date. Students are included in this group. Persons such as Canadian tourists, who enter without visas or I-94s, may also be addressed since such people occasionally enter the U.S. and remain for many years without ever triggering the “unlawful presence” provisions. (The reason for this is that, without an I-94, there is no date from which to count unlawful presence unless the person comes to the attention of INS or the Immigration Court.)

We will report on the proposed regulations, when issued. In the interim, we can only warn MurthyBulletin and MurthyDotCom readers to make every possible effort to maintain lawful status and avoid engaging in activities (such as unauthorized employment) that violate the terms of status.