Immigration Law

What constitutes Unlawful Presence in the United States?

Ensuring your safe passage through the Inadmissibility Gate ...

When dealing with US Immigration it is imperative that you comply with all conditions of your entry into the United States (do not overstay!).

You also need to be fully aware at all times of the complete list of Inadmissibility Factors (including any recent published changes).

Inadmissibility factors (and their interpretation) are subject to change and may be applied by US immigration and border officials in their absolute discretion.

If one or more Inadmissibility Factors may apply to you, we recommend you immediately contact our legal team for assistance.

Unlawful Presence: Overstaying your Authorized Period of Stay

Extracted from the USCIS Unlawful Presence Inadmissibility Factors webpage.

Unlawful presence is any period of time when you are present in the United States without being admitted or paroled, or when you are present in the United States after your “period of stay authorized by the Secretary” expires.

Unless an exception applies, you will be found inadmissible based on your accrual of unlawful presence if you:

- Seek admission again within 3 years of leaving the United States before removal proceedings begin, after you accrued more than 180 days but less than 1 year of unlawful presence during a single stay;

- Seek admission again within 10 years of leaving or being removed from the United States, after you accrued 1 year or more of unlawful presence during a single stay; or

- Reenter or try to reenter the United States without being admitted or paroled after you accrued more than 1 year of unlawful presence, in total, during 1 or more stays in the United States.

You can find these inadmissibility grounds in the Immigration and Nationality Act at INA 212(a)(9)(B)(i) and INA 212(a)(9)(C)(i)(I).

What is the difference between Immigration and Nationality Act (INA) sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I)?

The Immigration and Nationality Act (INA) sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) both address grounds of inadmissibility related to unlawful presence in the United States, but they differ significantly in terms of the duration of unlawful presence, the actions taken by the individual, and the consequences.

‍

Comparison Table Generated by Perplexity Pro AI

Important Note:

If you leave the United States after removal proceedings begin, including voluntarily, you must inform the Executive Office for Immigration Review.

If you fail to attend removal proceedings or if the immigration judge orders you removed when you are not physically present at the hearing, you could still be inadmissible, even if the reason you did not attend the removal proceedings was because you left.

How to seek relief from Inadmissibility?

Whether you are inadmissible depends on the immigration benefit you are seeking.

For some immigration benefits, the law may exempt you from the ground of inadmissibility.

If you are inadmissible under any ground in INA 212(a), including INA 212(a)(9)(B)(i) and INA212(a)(9)(C)(i)(I), you generally cannot obtain a visa from the U.S. Department of State, enter the United States at a port of entry, or obtain an immigration benefit such as adjustment of status to lawful permanent resident (a Green Card) in the United States unless you first obtain a waiver or another form of relief (such as consent to reapply for admission).

You can find information about some of the waivers or forms of relief on the following form pages:

Form I-192, Application for Advance Permission to Enter as a Nonimmigrant

Form I-601, Application for Waiver of Grounds of Inadmissibility

Form I-601A, Application for Provisional Unlawful Presence Waiver

Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal

Sources:‍

[1] Unlawful Presence and Inadmissibility - USCIS;

[2] [PDF] I-212 Advisory-final - Immigrant Legal Resource Center;

[3] [PDF] INA 212(a)(9)(B) Policy Manual Guidance - USCIS;

[4] Chapter 8: Grounds For Inadmissibility and Removal;

[5] Permanent Bar - overview - MyAttorney USA.

Credits:

This FAQ was created by James D. Ford Esq., GAICD CIPP/US CC | Principal Solicitor, Blue Ocean Law Group℠.

State of California Bar Number: 346590

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Which visas allow you to startup or run an Australian business?

Which Visa do you need to Start and run a business in Australia as a non-resident?

Specific Business Visa

In order to start and run a business in Australia as a non-resident, a specific business visa will be necessary pursuant to Australia’s immigration law [1].

However, a nomination by a state or territory government is required.

How to be nominated:

1️⃣ An expression of interest must be submitted through the Department of Home Affairs’ SkillSelect website;

2️⃣ Wait or contact a state or territory government to enquire whether there has been an invite to apply for a visa; and

3️⃣ Apply for this visa only if there has been an invitation.

Business Innovation and Investment (Provisional) Visa (Subclass 188)[2]

This type of visa is suitable for non-residents wanting to set up and manage a new or existing business in Australia who have been nominated by a state or territory government agency to apply for the visa.

Business Talent (Permanent) Visa (Subclass 132)[3]

This type of visa is suitable for non-residents who have the required funding or assets and have been nominated by a state or territory government agency to apply for the visa.

Footnotes:

[1] ‘Start a business as a non-citizen’, Business.gov.au (Web Page, As at 24 June 2020);

[2] ‘Business Innovation and Investment (Provisional) Visa’, Immigration and citizenship (Web Page);

[3] ‘Business Talent (Permanent) Visa’, Immigration and citizenship (Web Page).