Adjudicator’s Field Manual

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Chapter 40 Grounds of Inadmissibility under Section 212(a) of the Immigration and 

Nationality Act

40.1 Health Related Grounds of Inadmissibility and Medical Examination, has been superseded by USCIS 

Policy Manual, Volume 8, Part B: Health-Related Grounds of Inadmissibility as of January 28, 2014. 

40.2 Section 212(a)(2) of the Act - Criminal and Related Grounds [Reserved] 

40.3 Section 212(a)(3) of the Act - Security and Related Grounds [Reserved] 

40.4 Section 212(a)(4) of the Act - Public Charge [Reserved], has been superseded by USCIS Policy 

Manual, Volume 8: Admissibility as of February 24, 2020.

40.5 Section 212(a)(5) of the Act - Labor Certification and Qualifications for Certain Immigrants 

[Reserved] 

40.6 Section 212(a)(6) of the Act - Illegal Entrants and Immigration Violators 

40.6.2(c)(1) Section 212(a)(6)(C)(i) of the Act: Fraud or Misrepresentation, has been superseded by 

USCIS Policy Manual, Volume 8: Admissibility and Volume 9: Waivers as of March 25, 2014. 

40.6.2(c)(2) Section 212(a)(6)(C)(ii)(I) of the Act: Falsely Claiming Citizenship, has been superseded 

by USCIS Policy Manual, Volume 8: Admissibility as of December 14, 2016. 

40.7 Section 212(a)(7) of the Act - Documentation Requirements [Reserved] 

40.8 Section 212(a)(8) of the Act - Ineligible for Citizenship [Reserved] 

40.9 Section 212(a)(9) of the Act - Aliens Unlawfully Present after Previous Immigration Violations 

[Chapter 40.9 Added 05-06-2009] 

40.9.1 Inadmissibility Based on Prior Removal (Section 212(a)(9)(A) of the Act) or Based on 

Unlawful Return after Prior Removal (Section 212(a)(9)(C)(i)(II) of the Act) [Reserved] 

40.9.2 Inadmissibility Based on Prior Unlawful Presence (Sections 212(a)(9)(B) and (C)(i)(I) of 

the Act) 

40.10 Section 212(a)(10) of the Act - Miscellaneous [Reserved]
40.1 Health Related Grounds of Inadmissibility and Medical Examination, has been 

superseded by USCIS Policy Manual, Volume 8, Part B: Health-Related Grounds of 

Inadmissibility, as of January 28, 2014. 
40.2 Section 212(a)(2) of the Act - Criminal and Related Grounds [Reserved] 
40.3 Section 212(a)(3) of the Act - Security and Related Grounds [Reserved] 
40.4 Section 212(a)(4) of the Act - Public Charge [Reserved], has been superseded by USCIS 

Policy Manual, Volume 8: Admissibility as of February 24, 2020. 
40.5 Section 212(a)(5) of the Act - Labor Certification and Qualifications for Certain 

Immigrants [Reserved] 
 

 

 

 

 

 

 

 

 

 

 

40.6 Section 212(a)(6) of the Act - Illegal Entrants and Immigration Violators [Chapter 

Added 03-03-2009] 

40.6.1 Introduction and Overview 

40.6.1(a) General 

40.6.1(b) Inapplicability of Section 212(a)(6) of the Act to Registry Applicants under 

Section 249 of the Act (Except Section 212(a)(6)(E) of the Act 

40.6.1(c) Overview of Available Waivers 

40.6.2 Individual Grounds of Inadmissibility Under Section 212(a)(6) of the Act 

40.6.2(a) Section 212(a)(6)(A) of the Act: Aliens Present Without Admission or Parole 

40.6.2(b) Section 212(a)(6)(B) of the Act: Failure to Attend Removal Proceeding 

40.6.2(c) Section 212(a)(6)(C) of the Act: Misrepresentation and False Claim to U.S. 

Citizenship has been superseded in its entirety. 

Chapter 40.6.2(c)(1), Section 212(a)(6)(C)(i) of the Act: Fraud or Misrepresentation, has been 

superseded by USCIS Policy Manual, Volume 8: Admissibility and Volume 9: Waivers as of 

March 25, 2014. 
 

 

 

 

 

 

Chapter 40.6.2(c)(2), Section 212(a)(6)(C)(ii)(I) of the Act: Falsely Claiming Citizenship, has 

been superseded by USCIS Policy Manual, Volume 8: Admissibility as of December 14, 2016. 

40.6.2(d) Section 212(a)(6)(D) of the Act: Stowaways 

40.6.2(e) Section 212(a)(6)(E)(i) of the Act: Smugglers 

40.6.2(f) Section 212(a)(6)(F)(i) of the Act: Subject of Civil Penalty 

40.6.2(g) Section 212(a)(6)(G) of the Act: Student Visa Abusers 

40.6.1 Introduction and Overview 

(a) General. 

Any alien who is subject to one or more of the grounds of inadmissibility under section 

212(a)(6) of the Act is ineligible to receive a visa or to be admitted to the United States. 

Section 212(a)(6) of the Act covers the following grounds of inadmissibility: 

· Section 212(a)(6)(A) of the Act – Aliens present without admission or parole 

· Section 212(a)(6)(B) of the Act – Failure to attend removal proceeding 
 

 

 

 

 

· Section 212(a)(6)(C) of the Act – Misrepresentation 

· Section 212(a)(6)(D) of the Act – Stowaways 

· Section 212(a)(6)(E) of the Act – Smugglers 

· Section 212(a)(6)(F) of the Act – Subject of civil penalty 

· Section 212(a)(6)(G) of the Act – Student visa abusers 

The grounds of inadmissibility may apply when determining eligibility for benefits such as 

adjustment of status to lawful permanent resident status, adjustment to temporary resident status, 

change of nonimmigrant status, extension of nonimmigrant stay, or when applying for an 

immigrant or nonimmigrant visa abroad with the U.S. Department of State. 

Inadmissibility under section 212(a)(6) of the Act may also impact the exercise of discretion for 

non-status conferring benefits, such as parole under section 212(d)(5) of the Act. 

(b) I napplicability of section 212(a)(6) of the Act to Registry Applicants under Section 249 of 

the Act (Except Section 212(a)(6)(E) of the Act). 

Inadmissibility under section 212(a)(6) of the Act (other than Section 212(a)(6)(E) of the Act) 

does not make an alien ineligible for Registry under Section 249 of the Act. No separate waiver is 

required for the alien to apply for and obtain Registry because the statute itself makes 

inadmissibility under ection 212(a)(6) of the Act irrelevant to the alien’s eligibility. 
 

 

 

 

Note, however, that an alien who is inadmissible under Section 212(a)(6)(E) of the Act (relating 

to alien smugglers) is ineligible for Registry. 

(c) Overview of Available Waivers . 

(For a more detailed analysis of available waivers for a particular ground of inadmissibility, the 

adjudicator should refer to section 40.6.2 of this AFM chapter.) 

(1) Nonimmigrants in General . 

Section 212(d)(3) of the Act pr ovides broad discretion to admit aliens as nonimmigrants who 

are inadmissible under most provisions of section 212(a) of the Act, including under section 

212(a)(6) of the Act. As a practical matter, relief under section 212(d)(3) of the Act generally 

would not be of any benefit to an alien, who is inadmissible under section 212(a)(6)(A)(i) of the 

Act. See AFM chapter 40.6.2(a) . 

Note 

Depending on the particular nonimmigrant category, individuals inadmissible under section 

212(a) of the Act, including section 212(a)(6) of the Act, may obtain a waiver of 

inadmissibility under additional provisions of section 212 of the Act. For example, S 

nonimmigrant applicants may seek a waiver under section 212(d)(1) or section 212(d)(3) of 

the Act. If such an individual applies for adjustment of status after having been granted a waiver 

under section 212(d)(1) or (3) of the Act, as outlined in section 245(j) of the Act a nd 8 CFR 

245.11 , the alien does not need to apply for a waiver again. Check the particular nonimmigrant 

category in 8 CFR 214 to determine additional waiver provisions. 
 

 

(2) Immigrants . 

See chapter 40.6.2 of the AFM chapter that discusses the individual grounds of inadmissibility 

under section 212(a)(6) of the Act, and waivers that may be available to immigrants who are 

inadmissible under that section. 

(3) Asylees and Refugees Seeking Adjustment of Status . 

Section 212(a)(6) grounds of inadmissibility can be waived for Asylees and Refugees seeking 

adjustment of status pursuant to section 209(c) of the Act. Th ey may apply for a waiver by filing 

Form I-602, Applica tion by Refugee For Waiver of Grounds of Excludability. 

Under current USCIS policy, however, an adjudicator has discretion to grant the waiver without 

requiring the filing of Form I-602 , as specified at AFM chapter 41.6(b)(1) . 

Normally, waiver applications for refugees are handled overseas before a person is approved for 

refugee classification. See 8 CFR 207.3 . However, if a ground of inadmissibility arose after the 

alien’s approval for refugee classification, or if the ground was not known to the officer who 

approved the waiver, a waiver may be sought and adjudicated as part of the refugee adjustment 

process. See AFM chapter 23.6 (Asylee and Refugee Adjustment). 

(4) Continued Availability of Section 212(c) of the Act for Certain Aliens . 

Former section 212(c) of the Act provided broad discretion to waive most grounds of 

inadmissibility for aliens who had already been lawfully admitted for permanent residence, and 

who had been domiciled in the United States for at least seven (7) years, but who had become 

subject to removal. 
 

 

 

 

 

 

Congress repealed this provision, and the repeal took effect on April 1, 1997. In I.N.S. v. St. 

Cyr , 533 U.S. 289 (2001), however, the Supreme Court held that this repeal did not preclude 

certain aliens who, before April 1, 1997, had become subject to removal based on certain criminal 

convictions, from applying for relief und er section 212(c) of the Act. 

Relief under section 212(c) of the Act is not available to any alien who incurred inadmissibility 

under any provision of section 212(a)(6) of the Act, i f the conduct that makes the alien 

inadmissible occurred on or after April 1, 1997. 

An adjudicator may encounter a case in which an alien applies for relief under former section 

212(c) ( Form I-191 , Application for Advance Permission to Return to Unrelinquished Domicile) 

to obtain a waiver for conduct occurring before April 1, 1997, that renders the alien inadmissible 

under some provision of section 212(a)(6) of the Act. 

Unless the alien is also inadmissible on the basis of a criminal conviction that was entered before 

April 1, 1997, it is not clear whether the alien can claim the benefit of former section 212(c) of 

the Act. The adjudicator should consult with the appropriate regional or service center counsel 

concerning the availability of relief under former section 212(c) of the Act in these cases. 

(5) Legalization Applicants under Section 245A , Legalization Applicants under Section 1104 of 

the Legal Immigration Family Equity (LIFE) Act, PL 106-553, and the LIFE Act Amendments, PL 

106-554 (December 21, 2000) (Including CSS/LULAC, Zambrano Class Settlements) and 

subsequent Class Settlements relati ng to Section 245A . 

Section 212(a)(6) grounds of inadmissibility may be waived by filing Form I-690 , Application 

for Waiver of Grounds of Inadmissibility under Sections 245A or 210 of the Immigration and 

Nationality Act. The waiver may be granted in the discretion of the Secretary of Homeland Security 

(Secretary), if granting the waiver will serve humanitarian purposes, or assure family unity, or if 

the waiver is in the public interest. See 8 CFR 245a.2(k)(2) , 8 CFR 245a.3(g)(2) , and 8 CFR 

245a.18(c) . 
 

 

 

 

(6) Special Agricultural Worker (SAW) Applicants . 

Section 212(a)(6) grounds of inadmissibility may be waived pursuant to section 

210(c)(2)(B)(i) of the Act and 8 CFR 210.3(e) , by filing Form I-690 , Application for Waiver of 

Grounds of Inadmissibility Under Sections 245A or 210 of the Immigration and Nationality 

Act. See 8 CFR 210.3(e)(2) . The waiver may be granted in the discretion of the Secretary, if 

granting the waiver will serve humanitarian purposes, assure family unity, or if granting the 

waiver is in the public interest. See id. 

(7) Applicants for Temporary Protected Status (TPS) Pursuant to Section 244 of the Act . 

TPS applicants may apply for a waiver of inadmissibility under section 212(a)(6) of the Act. Th e 

waiver may be granted in the exercise of discretion, if the Secretary of Homeland Security 

determines that granting the waiver will serve humanitarian purposes, or assure family unity, or if 

granting the waiver would be in the public interest. The application is filed on Form I-601 , 

Application for Waiver of Grounds of Inadmissibility. See 8 CFR 244.3(b) . 

While section 244(c)(2)(A)(ii) of the Act ind icates that the Secretary or Attorney General (AG) 

may waive certain secti ons of 212(a) of the Act, section 244(a)(5) of the Act indicates that an 

alien cannot be denied TPS on account of his or her immigration status. Therefore, USCIS 

deems section 212(a)(6)(A) of th e Act to be inapplicable to TPS applicants; if an individual is 

inadmissible under section 212(a)(6)(A) of the Act, he or she is not required to file a waiver 

application. 

40.6.2 Individual Grounds of Inadmissibility Under Section 212(a)(6) of the Act 

(a) INA Section 212(a)(6)(A): Alien Present Without Admission or Parole or Who Arrives at 

Undesignated Time or Place. 
 

 

(1) General . INA section 212(a)(6)(A)(i) contains two closely related inadmissibility grounds. 

The first ground relates to the alien who is "present in the United States without being admitted or 

paroled." This inadmissibility ground generally covers those who entered the United States 

without inspection (and are still in the United States). 

The second inadmissibility ground in section 212(a)(6)(A)(i) relates to the alien "who arrives in 

the United States at any time or place other than as designated by the [Secretary of Homeland 

Security]." Where the first inadmissibility ground leaves off, this one picks up. Using the present 

tense ("arrives"), it covers the alien who is in the process of entering U.S. territory without 

inspection. 

The two inadmissibility grounds contained within section 212(a)(6)(A)(i) are thus 

complementary. Together, they capture aliens who have already achieved entry without inspection 

and those who are in the process of attempting such entry. 

Parole. An alien who is paroled under INA section 212(d)(5)(A) will no longer be inadmissible 

under the first ground in section 212(a)(6)(A)(i) (present without being admitted or paroled), 

because the person has been paroled. And since that alien arrived in the United States only in the 

past, the second inadmissibility ground in section 212(a)(6)(A)(i) is already inapplicable (even 

without the parole), because the alien is not one who "arrives" (present tense) at an undesignated 

time or place. It is not a question of parole curing or erasing the second inadmissibility ground. 

Rather, the alien who arrived in the past is already outside the ambit of that second ground; past 

arrivals are the subject of the first ground. Thus, an alien who entered the United States without 

inspection, but subsequently receives parole, is not inadmissible under either of the two 

inadmissibility grounds contained in section 212(a)(6)(A)(i). 

For an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects 

at least two of the eligibility requirements for adjustment of status. First, adjustment of status 

requires that the person be "admissible." INA § 245(a)(2) . As discussed above, parole eliminates 

one ground of inadmissibility, section 212(a)(6)(A)(i). Second, adjustment of status requires that 

the alien have been "inspected and admitted or paroled." INA § 245(a). The grant of parole 

overcomes that obstacle as well. The alien must still, however, satisfy all the other requirements 

for adjustment of status. One of those requirements is that, except for immediate relatives of 

United States citizens and certain other exempt categories listed in INA section 245(c)(2) , the 

person has to have "maintain[ed] continuously a lawful status since entry into the United States." 

Parole does not erase any periods of prior unlawful status or any other applicable grounds of 
 

 

 

 

 

inadmissibility. An alien who entered without inspection will therefore remain ineligible for 

adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within 

one of the other designated exemptions. Moreover, even an alien who satisfies all the statutory 

prerequisites for adjustment of status additionally requires the favorable exercise of discretion. 

Example: 

Alien A arrives in the United States at the port of entry at Sweet Grass, Montana. He is denied 

admission and detained. He escapes from detention, however, and makes his way into the 

interior of the United States. He is not inadmissible under the second part of Section 

212(a)(6)(A)(i) of the Act, since he arrived through an open port of entry. However, he is 

inadmissible under the first part of section 212(a)(6)(A)(i) of the Act because he is present in 

the United States without having been admitted or paroled. 

Example: 

Alien B arrives in the United States by crossing the border undetected 25 miles east of the port 

of entry at Sweet Grass, Montana. Alien B is inadmissible under both parts of Section 

212(a)(6)(A)(i) of the Act, since Alien B arrived other than at a port of entry and is present in 

the United States without having been admitted or paroled. 

Example 

Alien C arrives in the United States by crossing the border undetected 25 miles east of the port 

of entry at Sweet Grass, Montana. Some time after the alien’s arrival, a Customs and Border 

Protection (CBP) officer takes Alien C into custody. 
 

 

 

 

 

 

 

Because of the specific facts of this case, DHS determines as a matter of discretion that urgent 

humanitarian reasons justify Alien C’s parole into the United States under section 

212(d)(5)(A) of the Act. Once paroled, Alien C is no longer inadmissible under the first part 

of Section 212(a)(6)(A)(i) of the Act because the alien has been paroled under section 

212(d)(5)(A) of the Act. However, Alien C remains inadmissible under the second part of section 

212(a)(6)(A)(i) of the Act since he or she had arrived other than at a port of entry. 

Example: 

Alien D arrives in the United States by crossing the border undetected 25 miles east of the port 

of entry at Sweet Grass, Montana. Some time after his or her arrival, a CBP officer takes custody 

of Alien C and places him/her in removal proceedings. 

DHS determines that Alien D may be released from custody on posting a bond pursuant to 

section 236 of the Act (conditional parole). Alien D seeks a bond hearing before the 

immigration judge, who reduces the amount of the required bond. Alien D remains 

inadmissible under both prongs of Section 212(a)(6)(A)(i) of the Act. 

Release under conditional parole pursuant to section 236 of the Act is not parole. See (2)(ii) 

below for an explanation why conditional parole under section 236 of the Act is not equivalent 

to a parole under section 212(d)(5) of the Act . Thus, even after Alien D’s release, it remains 

the case that Alien D arrived at a place other than an open port of entry and that Alien D has not 

been admitted or paroled. 

(2) Definitions . 

(i) Admission . 

Section 101(a)(13)(A) of the Act defines “admission” and “admitted” as “the lawful entry of the 
 

 

alien into the United States after inspection and authorization by an immigration officer.” The 

provision also makes clear that “parole” is not admission. 

Before April 1, 1997, an alien who made an “entry without inspection” into the United States was 

a deportable alien under former section 241(a)(1)(B) of the Act. The Illegal Immigration Reform 

and Immigrant Responsibility Act (IIRIRA) (Division C of PL 104-208 (September 30, 1996)) 

amended Section 101(a)(13)(A) of the Act by removing the definition of the term “entry” and 

replacing it with a definition of the terms “admission” and “admitted.” 

IIRIRA provided, in section 235(a) of the Act , that an alien who is present without admission is 

deemed an applicant for admission, and thus is subject to removal as an inadmissible, not a 

deportable, alien. IIRIRA also added section 212(a)(6)(A)(i) of the Act , which provides the 

relevant inadmissibility ground. 

(ii) Parole . 

Parole is the discretionary decision, under section 212(d)(5)(A) of the Act , to permit an 

inadmissible alien to leave the inspection facility free of official custody, so that, although the alien 

is not admitted, the alien is permitted to be in the United States. By statutory definition, parole is 

not admission. See section 101(a)(13)(B) of the Act . An alien, who has been paroled under 

section 212(d)(5)(A) of the Act “[is] still in theory of law at the boundary line and [has] gained 

no foothold in the United States.” Leng May Ma v. Barber , 357 U.S. 185, 188-189 (1958), quoting 

Kaplan v. Tod , 267 U.S. 228 (1925). 

Parole may be granted for “urgent humanitarian reasons” (humanitarian parole) or for 

“significant public benefit.” Deferred inspection, 8 CFR 235.2 , and advance parole, 8 CFR 

212.5(f) , are types of parole, as are individual port of entry paroles and paroles authorized while 

the person is overseas. For purposes of section 212(a)(6)(A)(i) of the Act, the reason for the 

grant of parole is irrelevant. For more information on parole pursuant to section 212(d)(5)(A) of 

the Act , see AFM chapter 54 . 
 

 

 

Note: 

Only parole under section 212(d)(5)(A) of the Act qualifies as parole for purposes of section 

212(a)(6)(A)(i) of the Act. In an April 1999 Memorandum, and an August 1998 legal 

opinion (Legal Opinion No. 98-10, August 21, 1998), legacy INS suggested that a release 

pursuant to section 236 of the Act (conditional parole) could also be considered parole for 

purposes of adjustment of status under t he Cuban Adjustment Act (CAA). 

The Board of Immigration Appeals (BIA) has rejected this interpretation in at least one 

unpublished decision. See Matter of Ortega-Cervantes, 2005 WL 649116 (BIA, January 6, 2005). The 

Ninth Circuit confirmed the BIA’s decision and held that release under section 236 of the Act is 

not parole for purposes of adjustment of status. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 

1120 (9th Cir. 2007). 

DHS, moreover, no longer adheres to the 1998 INS opinion’s indication that release under section 

236 of the Act is the same as parole under section 212(d)(5)(A) of the Act . 

DHS/Office of General Counsel (OGC) reconsidered that aspect of the 1999 memorandum, and 

the related 1998 legal opinion. On September 28, 2007, DHS/OGC issued a memorandum stating 

that release under section 236 of the Act is not deemed to be a form of parole under section 

212(d)(5)(A) of the Act. See September 28, 2007, Office of the General Counsel of the Department 

of Homeland Security, Clarification of the Relation Between Release Under Section 236 and Parole Under Section 

212(d)(5) of the Immigration and Nationality Act . 

Adjudicators, therefore, may not find that release under section 236 of the Act qualifies as parole 

under section 212(d)(5) of the Act. 

(3) Applicability . 

(i) After April 1, 1997 . 
 

The effective date for section 212(a)(6)(A) of the Act was April 1, 1997. Section 

212(a)(6)(A) of the Act does not apply to applications for admission or adjustment of status 

adjudicated by an immigration judge in deportation or exclusion proceedings commenced prior to 

April 1, 1997. 

(ii) Only Applies to Individuals Present in the United States . 

Section 212(a)(6)(A)(i) of the Act only applies to individuals who are present in the United 

States in violation of section 212(a)(6)(A)(i) of the Act. Inadmissibility does not continue after 

the alien has departed the United States. Therefore, section 212(a)(6)(A)(i) of the Act does not 

apply to individuals who apply for a visa; however, these individuals may be inadmissible 

under sections 212(a)(9)(B) or (C)(i)(I) of the Act. 

Note: 

If an alien is granted TPS, he or she is in lawful status for adjustment of status purposes pursuant 

to section 244(f) of the Act. However, despite section 244(f) of the Act, the requirements 

of section 245(a) of the Act still apply at the time of adjustment of status. See Virtue, General 

Counsel Opinion, No. 91-27, March 4, 1991. Section 244(f)(4) of the Act does not make 

lawful the alien’s unlawful entry or presence in the United States prior to granting TPS. See id . 

For example, an alien who is granted TPS after having entered without being admitted or paroled, 

will be inadmissible pursuant to section 212(a)(6)(A)(i) of the Act at the time of adjustment of 

status despite the wording of section 244(f) of the Act. 

(4) Exemptions and Waivers . 
 

 

 

 

 

 

 

 

(i) Exemptions . 

In addition to the special waivers mentioned in section 1(b) or 1(c) of this AFM chapter, 

inadmissibility under Section 212(a)(6)(A)(i) of the Act does not make an alien inadmissible for 

the following benefits (by virtue of the statutory provisions governing these benefits): 

· Adjustment of status pursuant to section 245(i) of the Act ; 

· Adjustment of status under section 245(a) of the Act, if the applicant is an approved VAWA 

self-petitioner or the child(ren) of an approved VAWA self-petitioner (see AFM chapter 23.5(k)); 

· Adjustment of status pursuant to section 245(h) of the Act ; 

· Adjustment of status under section 902 of the Haitian Refugee Immigration Fairness Act 

(HRIFA) ; 

· Adjustment of status under section 202(b) of the Nicaraguan Adjustment And Central 

American Relief Act (NACARA); 

· Adjustment of status under section 249 of the Act (Registry); 

· Family Unity under section 301 of the Immigration Act of 1990 (IMMACT) ; 

· Legalization under section 245A , and CSS, LULAC or other section 245A Class Settlements; 
 

 

 

 

 

 

 

· Change of status to V nonimmigrant status ( section 214(q) of the Act and 8 CFR 214.15 ); 

· Temporary Protected Status under the interpretation of section 244(a)(5) of the Act ; 

· Asylum ( Sections 208(a)(1) and (2) and 208(b)(2) of the Act ; 8 CFR 208.13(c) ). 

(ii) Waivers . 

There are no waivers available to applicants inadmissible under INA section 212(a)(6)(A)(i) other 

than the waivers (or inapplicabilities) described in AFM Chapter 40.6.1(b) or (c). As stated in 

AFM Chapter 40.6.2(a)(1), however, an alien paroled under INA section 212(d)(5)(A) is not 

inadmissible under INA section 212(a)(6)(A)(i). 

(5) Citing References and Additional Materials . 

· March 31, 1997, Office of Programs memorandum - Implementation of section 212(a)(6)(A) and 

212(a)(9) grounds of inadmissibility 

· May 1, 1997, Office of Examinations memorandum – Processing of section 245(i) adjustment 

applications on or after the October 1, 1997 sunset date; Clarification regarding the applicability of certain new grounds of 

inadmissibility to 245(i) applications 

· April 19, 1999, Commissioner’s memo – Eligibility for permanent residence under the Cuban Adjustment 

Act despite having arrived at a place other than a designated port of entry 
 

 

 

 

· October 31, 2005, Domestic Operations memorandum – Re: Waivers under Section 209(c) of the 

Immigration and Nationality Act (AFM Update 05-33) 

· April 11, 2008, Domestic Operations memorandum – Adjustment of status for VAWA self-petitioner 

who is present without inspection ( AFM Update 08-16) 

(b) Section 212(a)(6)(B) of the Act: Failure to Attend Removal Proceeding 

(1) General . 

Any alien who, without reasonable cause, fails or refuses to attend or remain in attendance at a 

proceeding to determine the alien’s inadmissibility or deportability, and who seeks admission to 

the United States within five (5) years of such alien’s subsequent departure or removal is 

inadmissible. 

(2) Applicability . 

(i) Effective on or after April 1, 1997 . 

Section 212(a)(6)(B) of the Act does not apply to an alien placed in deportation or exclusion 

proceedings before April 1, 1997, even if the alien’s hearing was held after April 1, 1997. The 

provision applies only to individuals who are placed in removal proceedings beginning April 1, 

1997. 

An alien who failed to attend an exclusion proceeding under former section 236 of the Act, or a 
 

 

 

deportation proceeding under former section 242 of the Act is, therefore, not inadmissible 

under Section 212(a)(6)(B) of the Act. 

(ii) Only Applicable to Aliens Who Departed or Who Were Removed . 

Since the ground of inadmissibility applies to aliens, who “seek admission to the United States 

within five (5) years of such alien’s subsequent departure or removal ...,” only those aliens, who 

actually departed or were removed from the United States after failing to attend or to remain in 

attendance at their removal proceedings are inadmissible. Aliens, who remained in the United 

States after failing to attend their hearing, are not inadmissible under this provision. 

(iii) Only Applies to Aliens Seeking Admission During the Five (5)-Year Bar . 

This ground of inadmissibility does not apply to aliens who seek admission to the United States 

more than five (5) years after their departure or removal from the United States. 

(iv) Notice Requirement . 

In order to be inadmissible under Section 212(a)(6)(B) of the Act, the alien must actually have 

been in removal proceedings under section 240 of the Act . A section 240 removal proceeding is 

initiated by the filing of the Notice to Appear (NTA), Form I-862 , with the immigration 

court. See 8 CFR 1003.14(a) . Even if the alien was served with the Notice to Appear, the alien will 

not be inadmissible under section 212(a)(6)(B) of the Act unless the NTA was actually filed with 

the immigration court. 

Also, even if the NTA has been filed, an alien cannot be found to have “failed to appear” unless 

the alien had notice of the proceeding and of the obligation to appear. If the record shows that the 

alien had actual notice of the date and time of the removal hearing, and that the alien failed to 

appear, these facts would generally be sufficient to show the alien’s inadmissibility. See Matter of 

G- Y- R-, 23 I&N Dec. 181 (BIA 2001) . 
The alien may also be inadmissible if the alien had adequate constructive notice. An alien is on 

constructive notice if he or she is deemed to have been on notice because the notice of hearing 

was sent to the alien at the address that the alien provided as required by section 239(a)(1)(F) of 

the Act . See id. 

In short, the alien will be found inadmissible under Section 212(a)(6)(B) of the Act only if the 

alien failed to appear after there was notice that would be sufficient to support the entry of an in 

absentia removal order. This notice requirement does not mean that the alien can be found 

inadmissible only if there is an in absentia removal order. Even if the immigration judge did not 

enter such an order, the alien is inadmissible if the alien failed to appear after receiving proper 

notice of the proceedings. 

(v) Effect of an In Absentia Order . 

An alien who failed to attend or remain in attendance at a removal may have received an in 

absentia order of removal under section 240(b)(5) of the Act . As noted, an alien who fails to 

appear after proper notice, may be inadmissible under Section 212(a)(6)(B) of the Act even if 

the immigration judge did not enter an in absentia order. 

If the immigration judge did enter an in absentia order, that order will generally be sufficient to 

establish that the alien had sufficient notice of the proceeding and that the alien can be found to 

have failed to attend the proceeding. Thus, an alien’s departure after entry of an in absentia 

removal order will generally establish that the alien is inadmissible under section 212(a)(6)(B) of 

the Act. 

If the alien departs while an in absentia order is in effect, the alien may also be inadmissible under 

section 212(a)(9)(A) of the Act. 

(3) Exceptions and Waivers . 
 

(i) “ Reasonable Cause” Exception . 

In addition to the general exceptions to inadmissibility noted in 40.6.1(b) or 40.6.1(c) of 

this AFM chapter, an alien who establishes that there was a “reasonable cause” for failing to attend 

his or her removal proceeding is not inadmissible under Section 212(a)(6)(B) of the Act. 

“Reasonable cause” is defined neither in the statute nor in regulations; however, case law has 

provided some guidance on what constitutes “reasonable cause.” In general, “reasonable cause” is 

something that is not within the reasonable control of the alien. See case law summary in 

section 40.6.2(b)(4) of this AFM chapter. 

It may also be helpful to compare the alien’s circumstances to the higher standard of “exceptional 

circumstances” required for the rescission of a removal order, as defined in section 240(e) of the 

Act . 

However, the standard of “exceptional circumstances” is a standard more stringent than the 

“reasonable cause” standard. In order to justify rescission of a removal order, an alien must 

establish that “exceptional circumstances” prevented his or her attendance at the removal 

proceeding. 

Section 240(e) of the Act defines exceptional circumstances as circumstances beyond the control 

of the alien, such as: (1) battery or extreme cruelty to the alien or any child or parent of the alien; 

(2) serious illness of the alien; or (3) serious illness or death of the alien’s spouse, child, or parent. 

Whether the alien can meet the burden of proving “reasonable cause” for failure to attend the 

removal proceeding is determined by the officer adjudicating an application for an immigrant or 

nonimmigrant visa, for admission to the United States, for adjustment of status, change of status, 

or extension of stay, or any other benefit under the immigration laws. 
 

 

 

 

The officer determines the issue based on evidence that the alien presents in support of the 

pending application; no separate application (such as a Form I-601 ) is needed. In all cases, the 

burden of proving that the person had reasonable cause not to attend the removal proceedings 

rests with the alien. 

(ii) Waivers . 

There are no waivers available for this ground of inadmissibility, other than the exceptions or 

waivers described in 40.6.1(b) or 40.6.1(c) of this AFM chapter. 

(4) Citing References and Additional Materials . 

· March 31, 1997 , Office of Programs memorandum – Additional Guidance for Implementing Sections 

212(a)(6) and 212(a)(9) of the Immigration and Nationality Act (Act). See Appendix 40-1 

· Some Case Law Addressing “Reasonable Cause”: 

Hernandez-Vivas v. I.N.S., 23 F.3d 1557, 1560 (9 th Cir. 1994) – The filing of a motion to change 

venue does not establish reasonable cause for failure to appear at the removal hearing. Cases 

related to Hernandez-Vivas : 

Wijeratne v. I.N.S. , 961 F.2d 1344, 1346-47 (7 th Cir. 1992) – The fact that the alien had moved 

after proceedings were commenced did not provide for reasonable cause to justify the alien’s 

failure to appear at the removal hearing. 

Wellington v. I.N.S. , 108 F.3d 631, 635 (5 th Cir. 1997) – The error of an applicant’s counsel in 
 

misplacing the hearing notice does not constitute “reasonable cause” for the applicant’s failure to 

appear. 

Matter of Cruz-Garcia , 22 I&N Dec. 1155, 1159 (BIA 1999) – An alien who asserted for the first 

time on appeal that her failure to appear at a deportation hearing was the result of ineffective 

assistance of counsel, but who failed to comply with the requirements for such a claim, has not 

shown “reasonable cause” that warrants reopening of the proceedings. 

Matter of N-B- , 22 I&N Dec. 590, 593 (BIA 1999) – Reasonable cause” is a standard less 

stringent than the one of “exceptional circumstances;” the alien had provided sufficient and 

credible evidence that supported the applicant’s contention that she was suffering from a serious 

illness, which necessitated surgeries later on. 

Matter of S-A- , 21 I&N Dec. 1050, 1051 (BIA 1997) – An applicant’s general assertion that he 

was prevented from reaching his hearing on time because of heavy traffic does not constitute 

reasonable cause that would warrant reopening of his in absentia exclusion proceedings. 

Matter of Patel, 19 I&N Dec. 260, 262 (BIA 1985) – Filing a request for a continuance is not a 

reasonable cause for the alien’s failure to appear. 

Matter of Ruiz , 20 I&N Dec. 91, 93 (BIA 1989) – Illness, properly documented by a physician’s 

letter, was a valid excuse for the failure to appear. 

(c) Section 212(a)(6)(C) of the Act: Misrepresentation and False Claim to U.S. Citizenship. 

Chapter 40.6.2(c), Section 212(a)(6)(C) of the Act: Misrepresentation and False Claim to U.S. 

Citizenship, has been superseded in its entirety. 
 

Chapter 40.6.2(c)(1), Section 212(a)(6)(C)(i) of the Act: Fraud or Misrepresentation, has been 

superseded by USCIS Policy Manual, Volume 8: Admissibility and Volume 9: Waivers as of March 

25, 2014. 

Chapter 40.6.2(c)(2), Section 212(a)(6)(C)(ii)(I) of the Act: Falsely Claiming Citizenship, has 

been superseded by USCIS Policy Manual, Volume 8: Admissibility as of December 14, 2016. 

(d) Section 212(a)(6)(D) of the Act: Stowaways. 

(1) General . 

An alien who is a stowaway is inadmissible under section 212(a)(6)(D) of the Act. 

(2) Definition of Stowaway. 

Section 101(a)(49) of the Act defines stowaways as “any alien who obtains transportation 

without the consent of the owner, charterer, master, or person in command of any vessel or 

aircraft through concealment aboard such vessel or aircraft.” A passenger who boards with a valid 

ticket is not to be considered a stowaway. 

(3) Applicability . 

(i) A Stowaway Is Not An Applicant for Admission . 

Pursuant to section 235(a)(2) of the Act , a stowaway is not an applicant for admission and may 

not be admitted to the United States. 
 

A stowaway shall be ordered removed upon inspection by an immigration officer. If during this 

inspection, the alien indicates that he or she intends to apply for asylum, the inspector should refer 

the alien for a credible fear interview. 

A stowaway may only apply for asylum if the stowaway is found to have a credible fear during 

this interview. In no case may a stowaway be considered an applicant for admission or be eligible 

for a hearing under section 240 of the Act (Removal proceedings). 

(ii) Ineligible to Adjust Status under Section 245 or Section 245(i) of the Act or to Change Status 

under Section 248 of the Act . 

As a practical matter, this ground of inadmissibility usually applies to aliens who are encountered 

at the time of an attempted entry into the United States. However, this ground of inadmissibility 

also applies to an alien who traveled to the United States as a stowaway, entered the United States, 

and is attempting to adjust status to lawful permanent residence or to change status while in the 

United States. 

Section 245(i) of the Act provides authority to grant adjustment to certain aliens who are not 

eligible for adjustment of status because they are unable to meet the requirements of section 

245(a) of the Act or are subject to the bars of section 245(c) of the Act . 

Namely, certain eligible aliens, despite having entered without inspection (under section 

212(a)(6)(A)(i) of the Act ) or despite ineligibility according to the grounds listed in section 

245(c) of the Act, may apply for adjustment of status under section 245(i) of the Act. 

Nothing in section 245(c) of the Act , however, applies specifically to stowaways, and 

stowaways, as noted, are inadmissible under section 212(a)(6)(D) of the Act . Thus, a stowaway 

is not eligible for adjustment under section 245(i) of the Act. 
 

 

 

(iii) Ineligible for Removal Proceedings under section 240 of the Act . 

Even if the alien has been found to have a credible fear after the credible fear interview and is 

allowed to file an application for asylum, the stowaway is ineligible for proceedings under section 

240 of the Act. 

(4) Waivers And Exceptions . 

(i) Exceptions . 

In addition to the general exceptions noted in section 40.6.1(b) of this AFM chapter , a stowaway 

may: 

· be paroled into the United States pursuant to section 212(d)(5) of the Act for various 

purposes, including for the alien to apply for asylum; 

· seek adjustment of status under section 245(h) of the Act . 

(ii) Exception for Returning Legal Permanent Residents . 

The only exception to the summary removal provision of stowaways is the provision providing 

relief to lawful permanent residents returning from a brief, temporary absence. See section 

101(a)(13)(C) of the Act. 

(iii) Waivers . 
 

 

 

 

Other than the ones noted in 40.6.1(c) of this AFM chapter, there is no waiver available. 

(e) Section 212(a)(6)(E)(i) of the Act: Smugglers. 

(1) General . 

Any alien, who at any time knowingly has encouraged, induced, assisted, abetted, or aided any 

other alien to enter or to try to enter the United States in violation of the law, is inadmissible. 

(2) Definitions . 

(i) Knowingly . 

For section 212(a)(6)(E)(i) of the Act to apply, the alien must “knowingly” encourage, induce, 

or assist an illegal alien to enter the United States. 

The term “knowingly” means that the alien must be aware of facts sufficient that a reasonable 

person in the same circumstances would conclude that his or her encouragement, inducement, or 

assistance could result in the illegal entry of the alien into the United States. 

Furthermore, the smuggler must encourage, induce, or assist with the intent that the alien achieve 

the illegal entry. The mistaken belief that the alien was entitled to enter legally can be a defense to 

inadmissibility for suspected smugglers. 
 

 

 

 

 

 

Example: 

In Tapucu v. Gonzales , 399 F.3d 736 (6th Cir. 2005), the alien drove his friends from Canada to 

the United States. He knew that one (1) of them was not a U.S. citizen or national, and that this 

friend had been living in the United States illegally. However, at the time of the trip, the alien 

believed that the friend’s pending adjustment of status application made it lawful for the friend 

to return to the United States. The court held that he did not knowingly assist the friend to 

reenter illegally. 

Example: 

In Altamirano v. Gonzales , 427 F.3d 586 (9th Cir. 2005), the applicant was a guest rider in a car. 

During the ride, she knew that someone was hiding in the trunk. The court found that, even 

though the individual had knowledge of the presence of the illegal alien, she was not 

inadmissible under section 212(a)(6)(E) of the Act because she herself did not perform any 

affirmative act to aid or abet the alien smuggling. 

(ii) Encourage, Induce, Assist, Abet, or Aid . 

Any affirmative action that leads an applicant to enter the United States illegally can be classified as 

“encourage, induce, assist, abet, or aid.” 

Example 1: 
 

 

 

 

 

 

 

Offering a job to an alien under circumstances that make clear that the alien will have to enter 

illegally to accept the job offer; 

Example 2: 

Physically transporting or bringing the alien across the border; or 

Example 3: 

Making a false written or oral statement on behalf of another alien at the time of entry; 

Example 4: 

Filing an immigrant or nonimmigrant visa petition for an alien, knowing that the alien does not 

have the necessary qualifying relationship to the individual (for a family-based petition) or (for 

an employment-based petition) that the petition does not rest on a bona fide job offer, 

investment plan, or other set of circumstances that qualifies the alien for the immigrant or 

nonimmigrant classification that is sought. 

(iii) With Regard to a Visa Application . 

As noted in the discussion of section 212(a)(6)(C)(i) of the Act, an alien who gave a materially 

false statement in support of another alien’s application for an immigration benefit would not 

incur inadmissibility under section 212(a)(6)(C) of the Act. 
 

A materially false statement in support of another alien’s application could, however, make the 

alien inadmissible under section 212(a)(6)(E) of the Act for having knowingly “assisted, abetted, 

or aided” the other alien’s unlawful entry. 

(iv) An Alien . 

The person whom the alleged smuggler “encouraged, induced, assisted, abetted or aided” must 

have been an alien at the time of the smuggling. That is, the person must not have been a citizen 

or a non-citizen U.S. national. 

(v) Enter or Try to Enter . . . in Violation of Law . 

An alien may be inadmissible under section 212(a)(6)(E) of the Act as a result of 

“encourag[ing], induc[ing], assist[ing], abet[ing] or aid[ing]” another alien’s entry into the 

United States without inspection at a port-of-entry or by “encourag[ing], induc[ing], assist[ing], 

abet[ing] or aid[ing]” the other alien in obtaining admission or parole at a port-of-entry by fraud. 

(3) Applicability . 

(i) Inadmissible Even for Smuggling Close Family Members . 

Under the pre-1990 version of 212(a)(6)(E)(i) of the Act, an alien was not inadmissible, if he or 

she smuggled close family members based on a motive of close affection and not for financial 

gain. This version was eliminated with the passing of the Immigration Act of 1990 (IMMACT 

90) . Under current section 212(a)(6)(E) of the Act , an alien will be inadmissible even if an 

alien assists or causes close family members to enter the United States illegally and regardless of his 

or her motivation. However, to alleviate some of the harshness of the provision, a waiver is 

available under section 212(d)(11) of the Act . See 40.6.2(e)(4) of this AFM chapter below. 
 

 

 

 

(ii) Motives of the Smuggler Are Irrelevant . 

Under section 212(a)(6)(E)(i) of the Act , it is irrelevant what motives caused the smuggler to 

induce, encourage, assist, abet, or aid the alien. 

(iii) “Gain” Is No Longer Required . 

Under former section 212(a)(31) of the Act, alien smuggling made an alien inadmissible only if 

the smuggling was done “for gain.” See section 212(a)(31) of the Act (1988) or Title 8, United 

States Code (U.S.C.), 1182(a)(31) (1988). “Gain” is no longer an element under current section 

212(a)(6)(E) of the Act. 

(4) Waivers and Exceptions . 

(i) Statutory Exception In Section 212(a)(6)(E)(ii) of the Act for Family Reunification (Family 

Unity). 

In addition to the waivers mentioned in 40.6.1(c) or 40.6.2(e)(4)(ii) of this AFM chapter, section 

212(a)(6)(E)(ii) of the Act states that an alien who has engaged in alien smuggling is not 

inadmissible under section 212(a)(6)(E) of the Act, if the alien is a “Family Unity” immigrant 

under section 301(b)(1) of IMMACT 90 , and the alien: 

· was physically present in the United States on May 5, 1988; and 

· seeks admission as an immediate relative or as a second family-based preference immigrant 

(including under sections 112 or 301(a) of IMMACT 90); and 
 

 

 

 

 

 

 

· has encouraged, induced, assisted, abetted, or aided only the alien’s spouse, parent, son, or 

daughter (and no other individual) to enter the United States in violation of the law; and 

· the smuggling occurred before May 5, 1988. 

(ii) Waivers . 

In addition to the waivers described above in section 40.6.1(c) of this AFM chapter , section 

212(a)(6)(E)(iii) of the Act allows individuals applying for a visa to apply also for a waiver of 

this ground of inadmissibility pursuant to section 212(d)(11) of the Act . 

To be eligible for this waiver, the alien must establish that: 

· He or she is a lawful permanent resident who temporarily proceeded abroad voluntarily, who 

is not under an order of removal, and who is otherwise admissible as a returning resident 

pursuant to section 212(d)(11) of the Act ; or 

· He or she is seeking admission (or adjustment of status) as an immediate relative, or as a first, 

second, or third family-based preference immigrant; and 

· He or she encouraged, induced, assisted, abetted, or aided the unlawful entry only of an 

individual who at the time of such action was the alien’s spouse, parent, son, or daughter, and the alien 

has not encouraged, induced, assisted, abetted, or aided the unlawful entry of any other 

individual. 

The application is filed on Form I-601 , Application for Waiver of Grounds of Inadmissibility. This 
 

 

 

 

waiver may be granted in the discretion of the Secretary of Homeland Security to assure family 

unity, or when it is otherwise in the public interest. 

(5) Reference . 

U.S. Department of State, 9 Foreign Affairs Manual ( FAM ) 40.65 “Smugglers” and 40.65 Notes 

(f) Section 212(a)(6)(F)(i) of the Act: Subject of Civil Penalty. 

(1) General . 

An alien who is the subject of a final order imposing a civil penalty for violation of section 

274C of the Act , is inadmissible under section 212(a)(6)(F)(i) of the Act . 

(2) Definitions . 

(i) Final Order . 

What constitutes a “final order” under section 274C of the Act depends on how a violation of 

section 274C of the Act was adjudicated. 

When the Department of Homeland Security (DHS) issues a notice of intent to fine under section 

274C of the Act, the person has sixty (60) days to request a hearing before an administrative law 

judge. If the person does not request a hearing, the DHS decision to impose a civil penalty under 

section 274C is the final order. See 8 CFR 270.2(g) and (h) . 
If the person does make a timely request for a hearing before an administrative law judge, the 

administrative law judge’s order imposing a fine is the final order unless the Chief Administrative 

Hearing Officer of the Executive Office for Immigration Review modifies or vacates the order, or 

unless the case is referred to or accepted for review by the Attorney General. See section 

274C(d)(4) of the Act , 8 CFR 270.2(f) an d 28 CFR 68. 

(ii) section 274C of the Act . 

Section 274C of the Act makes it unlawful for a person or entity to knowingly: 

(A) forge, counterfeit, alter, or falsely make any document; 

(B) use, attempt to use, possess, obtain, accept, or receive any forged, counterfeit, altered, or 

falsely made document; 

(C) use, or attempt to use any document lawfully issued to a person other than the possessor 

(including a deceased individual); for the purpose of or in order to satisfy any requirements of the 

Act. See section 274C(a)(1) through (3) of the Act. 

It is also unlawful to knowingly accept or receive any document lawfully issued to a person other 

than the possessor (including a deceased individual) for the purpose of complying with section 

274A(b) of the Act or obtaining a benefit under the Act. See section 274C(a)(4) of the Act . 

Section 274C(a)(5) of the Act prohibits the preparation, filing, or assistance to another in 

preparing or filing any application for benefits under the Act, or any document required under the 

Act, or any document submitted in connection with such application or document, with 

knowledge or in reckless disregard of the fact that such application or document was falsely made 
 

or, in whole or in part, does not related to the person on whose behalf it was or is being 

submitted. 

Finally, section 274C(a)(6) of the Act makes it unlawful for a person or an entity to knowingly 

present before boarding a common carrier for purposes of coming to the United States a 

document, which relates to the alien’s eligibility to enter the United States, and to fail to present 

such document to an immigration officer upon arrival at the United States port of entry. 

(3) Applicability . 

(i) Effective Date . 

Section 212(a)(6)(F) of the Act became effective on June 1, 1991; an alien subject to a final 

order imposing civil penalties under section 274C of the Act on or after that date is ineligible for 

adjustment and was subject to exclusion (pre-1996), or removal proceedings (post-1996). 

(ii) Effect of Administrative Appeal or Judicial Review . 

If DHS issues a final order because the person did not request a hearing, the DHS order is final and 

is not subject to any administrative or judicial review. See section 274C(d)(2)(B) of the Act . 

If the person does request a hearing, the administrative law judge’s decision is the final decision 

unless the case is before the Chief Administrative Hearing Officer or the Attorney General for 

review. See section 274C(d)(4) of the Act. 

If the person files a timely petition for review of a final order with the appropriate court of 

appeals, the order is not deemed final while the petition for review remains pending. See section 

274C(d)(5) of the Act . 
 

(iii) Other Inadmissibility Grounds May Be Applicable . 

Check whether other grounds of inadmissibility under section 212 of the Act exist. It is possible 

that an alien who is subject to a civil penalty under section 274C of the Act , may be subject to 

other grounds of inadmissibility, such as section 212(a)(6)(C) [Misrepresentation] 

or 212(a)(6)(E) [Smugglers] of the Act. If the alien was also convicted in a criminal proceeding, 

the conviction could make the alien inadmissible under section 212(a)(2) of the Act . 

(iv) Effect of a Waiver under Section 212(i) of the Act . 

The Board of Immigration Appeals (BIA) held that if an alien is in removal proceedings, a waiver 

under section 212(i) of the Act may not be used to waive section 212(a)(6)(F) for document 

fraud in violation of section 274C of the Act . See Matter of Lazarte-Valverde , 21 I&N Dec. 214 (BIA 

1996). 

In Matter of Lazarte-Valverde, the BIA rejected the position stated in General Counsel Opinion 93-33, 

issued by the General Counsel of the former INS in 1993. USCIS adjudicators are bound by the 

BIA’s decision, and must not follow the General Counsel Opinion 93-33. See 8 CFR 

1003.1(g) (Board precedents bind USCIS officers). 

(4) Exceptions and Waivers . 

(i) Nonimmigrants . 

After a final order is entered pursuant to section 274C of the Act , a nonimmigrant seeking entry 

may be eligible to apply for advance permission to enter the United States as a nonimmigrant 

despite the inadmissibility, pursuant to section 212(d)(3) of the Act . The application is filed 

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

 

 

(ii) Waiver for Immigrants and Adjustment of Status Applicants under Section 212(d)(12) of the 

Act . 

The Secretary of Homeland Security may, in his or her discretion and for humanitarian purposes 

or to assure family unity, waive the application of section 212(a)(6)(F)(i) of the Act in the case 

of an alien, who: 

(A) Is: 

· already lawfully admitted for permanent residence, and who temporarily proceeded abroad 

voluntarily and not under an order of deportation or removal, and who is otherwise admissible to 

the United States as a returning resident under section 211(b) of the Act ; or 

· seeking admission or adjustment of status as an immediate relative or as a family-based 

preference immigrant; and 

(B) Has not been the subject of any prior civil money penalty under section 274C of the Act ; and 

(C) Committed the offense that resulted in the civil money penalty solely to assist, aid, or support 

the alien’s spouse or child (and not another individual). 

The relationship to the supported individual had to exist at the time of the fraud, not only at the 

time of the waiver application. The waiver application must be filed on Form I-601 , Application 

for Waiver of Grounds of Inadmissibility. Also, there is no judicial review of a decision denying 

this waiver. 
 

 

 

 

 

Note: 

The legislative history of a prior version of the bill that became IIRIRA suggests that this waiver 

is also available to employment-based immigrants. See H. Conf. Rep. 104-828 at 227 (1996). 

This report, however, directly contradicts the actual terms of the statute on this point. The report 

cannot be relied on to grant a waiver to someone who is not eligible for it under the terms of the 

statute. Thus, an alien who is not already a lawful permanent resident (LPR) may seek the waiver 

under section 212(d)(12) of the Act only if the alien is seeking to immigrate as an immediate 

relative or as a family-based immigrant. 

(iii) No Other Waivers or Exceptions Available . 

Other than stated in this section or section 40.6.1(b) or 40.6.1(c) of this AFM chapter , there is 

no other waiver or exception available to an alien who is inadmissible under section 

212(a)(6)(F) of the Act. 

Also, as noted, the conduct that made the person subject to the civil penalty under section 

212(a)(6)(F) of the Act may also make the alien inadmissible under other provisions of the Act. 

Just as a waiver under section 212(i) of the Act does not waive section 212(a)(6)(F) of the 

Act, see Matter of Lazarte-Valverde, supra , a waiver under section 212(d)(12) of the Act would not 

relieve the alien of inadmissibility under some other ground. The alien would have to apply for 

each separate waiver for each relevant ground of inadmissibility. 

(5) References and Other Materials . 

· U.S Department of State’s 9 Foreign Affairs Manual ( FAM ) 40.66 “Subject of Civil Penalty” 

and 40.66 Notes 
 

 

 

· Matter of Lazarte-Valverde , 21 I&N Dec. 214 (BIA 1996) 

(g) Section 212(a)(6)(G) of the Act: Student Visa Abusers. 

(1) General . 

An alien who obtains the status of nonimmigrant under section 101(a)(15)(F)(i) of the Act as a 

student, and who violates a term or condition of such status under section 214(l) of the Act 

[now section 214(m) of the Act ] is inadmissible until the alien has been outside the United States 

for a continuous period of five (5) years after the date of the violation. 

Section 212(a)(6)(G) of the Act refers to the violation of conditions of admission as imposed 

under section 214(l) of the Act . Section 212(a)(6)(G) of the Act, and the related section 214(l) 

of the Act, were enacted by section 625 of IIRIRA, PL 104-208 . Section 671(a)(3)(A) of the same 

law, however, had redesignated section 214(k) of the Act, as added by PL 103-416, to be section 

214(l) of the Act. 

There was already a section 214(k) of the Act when PL 103-416 was enacted. Its enactment 

resulted in two (2) sections 214(k) of the Act. Once PL 104-208 was enacted, there were 

now two (2) sections 214(l) of the Act. The version of section 214(l) of the Act referred to in 

section 212(a)(6)(G) of the Act was subsequently redesignated as section 214(m) of the Act by 

section 107(e)(2) of the Victims of Trafficking and Violence Protection Act of 2000, PL 106-386 

(October 28, 2000). section 214(m) of the Act , therefore, is the provision that relates 

to Section 212(a)(6)(G) of the Act . 

Section 214(m)(1) of the Act specifies that an alien may not be accorded F-1 student 

nonimmigrant status to study at a public elementary school or in a publicly funded adult 

education program. Study at a public secondary school is allowed as long as the aggregate period 

of study does not exceed twelve (12) months and the alien has reimbursed the local educational 

agency for the full, unsubsidized per capita cost of his or her education at the school. 
 

 

 

 

 

Section 214(m)(2) of the Act states: 

An alien, who obtains the status of nonimmigrant under clause (i) or (iii) of section 

101(a)(15)(F) in order to pursue a course of study at a private elementary or secondary school or 

in a language training program that is not publicly funded shall be considered to have violated 

such a status, and the alien’s visa under section 101(a)(15)(F) of the Act shall be void, if 

· the alien terminates or abandons such course of study at such a school; AND 

· undertakes a course of study at a public elementary school, in a publicly funded adult 

education program, in a publicly funded adult education language training program, or at a public 

secondary school (unless the requirements of section 214(m)(1)(B) of the Act are met). 

Therefore, in order to be deemed a student visa abuser under Section 212(a)(6)(G) of the Act for 

being in violation of section 214(m)(2) of the Act, both conditions (1 and 2) must be fulfilled. 

The alien cannot be held to be a student visa abuser for being in violation of section 214(m)(2) of 

the Act, if only one condition is met. see below, section (g)(3) of this update . 

However, because of the wording of section 212(a)(6)(G) of the Act [which refers to 214(m) of 

the Act in its entirety), the individual may be deemed to be a student visa abuser for being in 

violation of section 214(m)(1) of the Act . 

(2) Definitions . 

The terms used in section 214(m) of the Act are defined as follows: 

Abandon : To desert, surrender, forsake, or cede. To relinquish or give up with intent of never 
again resuming one’s right or interest. To give up or to cease to use. To give up absolutely; to 

forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert. It 

includes the intention, and also the external act by which it is carried into effect. See Lee v. 

Mukasey, 527 F.3d 1103 (10th Cir. 2008) ; referring to Black’s Law Dictionary (6th ed., 1990). 

Public Elementary School : Kindergarten through eighth (8th) grades. 

Public Secondary School : Ninth (9th) through twelfth (12th) grades (also known as “high 

school”). 

Publicly-Funded Adult Education Programs : Publicly funded adult education programs means 

education, training, English-as-Second-Language (ELS) or other intensive English programs 

operated by, through, or for a local public school district, system, agency, or authority, regardless 

of whether such program charges fees or tuition. 

Terminate : To put to an end; to bring to an end; to end or to conclude. See Black’s Law Dictionary 

(8th ed. 2004). 

(3) Applicability . 

Only Applicable to Individuals Seeking F-1 Nonimmigrant Student Status after November 30, 

1996 . 

Section 212(a)(6)(G) of the Act only applies to aliens seeking F-1 status after November 30, 

1996, or aliens, whose status was extended on or after that date. It does not apply to aliens 

attending public schools or programs while in other nonimmigrant status (e.g. F-2, E, H-4, J, or 

B-2), or to individuals out-of-status or with no status at all. 
 

 

 

 

 

 

 

Conduct That Violates Section 214(m) of the Act . An alien admitted as an F-1 nonimmigrant 

student on or after November 30, 1996, violates section 214(m) of the Act, and is inadmissible 

under section 212(a)(6)(G) of the Act, if the alien: 

· attends a public elementary school for any length of time; or 

· attends a public secondary school for more than twelve (12) months, in the aggregate (even if 

the student pays the full unsubsidized per capita cost); or 

· attends a public secondary school without paying the full unsubsidized per capita cost (even if 

the alien attends for less than twelve (12) months, in the aggregate); or 

· attends a publicly funded adult education program for any length of time; or 

· abandons or terminates enrollment in an approved school and attends a public elementary 

school, a publicly funded adult education program, or a publicly funded adult education language 

training program, or a public secondary school, in violation of the requirements of section 

214(m)(1) of the Act. 

Note: 

See AFM 40.6.2(g)(2) (iv) concerning the impact of the closure of a school. 

These prohibitions do not apply to post-secondary schools such as public community or junior 

colleges, which receive public funds but charge full non-resident tuition to foreign students. 
 

 

(iii) Burden of Proof . 

The alien bears the responsibility of documenting that a school is not considered to be a public 

school. The school is responsible for determining what amount constitutes the “unsubsidized per 

capita cost of education,” and the school’s estimate of its per student expenditure of public 

revenues (federal, state, and local). The later figure is not necessarily the school’s nonresident 

tuition rate. 

(iv) Effect of Closure of a School . 

In Lee v. Mukasey , 527 F.3d 1103, 1107 (10th Cir. 2008), the U.S. Court of Appeals for the Tenth 

Circuit held that an alien who quit attending his or her approved school, and enrolled in a 

different school in violation of section 214(m) of the Act was not inadmissible under section 

212(a)(6)(G) of the Act . The basis for the Court’s conclusion is that the reason the alien had left 

the approved school was that it had closed. 

USCIS has decided to follow the Lee decision nationwide. An alien will not be found inadmissible 

under section 212(a)(6)(G) of the Act and under section 214(m) of the Act, solely because he or 

she is no longer at the school for reasons that can be attributed to th e school only (such as a 

school’s permanent closing). 

However, a lthough ceasing to attend the approved school because it has closed will not make the 

alien inadmissible under section 212(a)(6)(G) of the Act, this fact does not mean that the alien is 

still in a lawful nonimmigrant status. This nonimmigrant status will have ended, and the alien will 

be subject to removal under section 237(a)(1) of the Act , unless the alien transfers to another 

approved school. 

The student and the new school will still have to comply with the requirements imposed 

by sections 101(a)(15)(F) and 214(m)(1) of the Act, as well as 8 CFR 214.2(f) , in order for the 

alien to maintain valid nonimmigrant status. See Matter of Yazdani , 17 I&N Dec. 626 (BIA 1981)(An 

alien who, without first securing the Service’s permission, transfers to a school other than that 

which she was authorized, is in breach of the condition of the student’s status). The alien student 

may be subject to section 245(c)(2) of the Act or any other provisions imposing adverse 

consequences on aliens who are unlawfully present in the United States. 

In relat ion to the grant of reinstatement or a student’s transfer request under 8 CFR 

214.2(f)(8) and 8 CFR 214.2(f)(16) , the adjudicator should consider every relevant 

circumstance. If the adjudicator encounters difficulties, the adjudicator should contact his or her 

supervisor or local counsel. 

An alien whose enrollment at an approved school ends because the school has closed will also be 

in an unlawful status for purposes of sections 245(c)(2) , (7) and (8) of the Act. Thus, even if 

the alien is not inadmissible under section 212(a)(6)(G) of the Act, the alien may be precluded 

from adjustment of status. 
 

 

 

 

 

 

 

The decision to remain in the United States cannot be excused as a violation “through no fault of 

one’s own” because, although the alien may not have had control over the closure of the school, 

the alien would also have the option of complying with the law, either by transferring to a school 

that the alien is permitted to attend under section 214(m) of the Act, or by leaving the United 

States. 

Leaving the United States and returning does not cure one’s adjustment ineligibility under section 

245(c)(2) of the Act. See 8 CFR 245.1(d)(3) . 

(v) Individuals to Whom Section 212(a)(6)(G) of the Act Does Not Apply . 

Section 212(a)(6)(G) of the Act does not apply to the following individuals: 

· Aliens who remained outside the United States for a continuous period of five (5) years after 

having violated the terms and conditions of section 214(m) of the Act; 

· Aliens studying in pubic schools, who are in J-1, J-2, E, F-2, L-2, or H-4 nonimmigrant status; 

· Aliens, who are studying at public schools illegally, such as B-2 nonimmigrants or aliens who 

are unlawfully in the United States; 

· Aliens who violate the terms and conditions of their F-1 nonimmigrant student status in other 

ways, such as non-attendance at their approved school, working without authorization, or not 

maintaining a full-course of study. 

(4) Exceptions and Available Waivers . 

Other than the general exceptions and waivers to inadmissibility noted in 

sections 40.6.1(b) and 40.6.1(c) of this chapter , there are no exceptions or waivers to 

inadmissibility for aliens who are student visa abusers. 

(5) References . 

· 74 No. 5 Interpreter Releases 227 (February 3, 1997), INS provides Interim Guidance on New Public 

School Provisions for F-1 Students (complete reproduction of INS HQ Cable text sent to all Field offices 

on January 27, 1997 (File HQ 50/5.12/96ACT.011)] (Note: The text of this cable is not available 

on USCIS’ website.) 

· U.S. Department of State’s 9 Foreign Affairs Manual (FAM) 40.67 “Student Visa Abusers” and 

40.67 Notes 
40.7 Section 212(a)(7) of the Act - Documentation Requirements [Reserved] 
40.8 Section 212(a)(8) of the Act - Ineligible for Citizenship [Reserved] 
40.9 Section 212(a)(9) of the Act - Aliens Unlawfully Present after Previous Immigration 

Violations [Chapter 40.9 added May 6, 2009]

Section 212(a)(9) of the Act renders certain aliens inadmissible based on prior violations of U.S. 

immigration law. Section 212(a)(9) of the Act has three major subsections.

Under section 212(a)(9)(A) of the Act, an alien, who was deported, excluded or removed under any 

provision of law, is inadmissible if the alien seeks admission to the United States during the period 

specified in section 212(a)(9)(A) of the Act, unless the alien obtains consent to reapply for admission 

during this period.

Under section 212(a)(9)(B) of the Act, an alien is inadmissible if the alien has accrued a specified period 

of unlawful presence, leaves the United States after accruing the unlawful presence, and then seeks 

admission during the period specified in (either 3 years or 10 years after the departure, depending on 

the section 212(a)(9)(B)(i) duration of the accrued unlawful presence).

Under section 212(a)(9)(C)(i) of the Act, an alien is inadmissible if the alien enters or attempts to enter 

the United States without admission after having been removed or after having accrued more than one year 

(in the aggregate) of unlawful presence.

AFM Chapter 40.9.2 provides an overview of USCIS’ policy concerning the accrual of unlawful presence 

and the resulting inadmissibility under section 212(a)(9)(B) or section 212(a)(9)(C)(i)(I) of the Act.

40.9.1 Inadmissibility Based on Prior Removal (Section 212(a)(9)(A) of the Act) or Based on Unlawful 

Return after Prior Removal (Section 212(a)(9)(C)(i)(II) of the Act)

[Reserved]

40.9.2 Inadmissibility Based on Prior Unlawful Presence (Sections 212(a)(9)(B) and (C)(i)(I) of the Act)

ALERT: On Feb. 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a 

nationwide injunction enjoining USCIS from enforcing the Aug. 9, 2018, policy memorandum titled, 

“Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” USCIS will continue to apply the prior 

policy guidance found in AFM Chapter 40.9.2, issued on May 6, 2009: Consolidation of Guidance 

Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(I) of the Act.
Table of Contents: Chapter 40.9.2

(a) Overview

(1) Outline of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act

(2) Distinction Between “Unlawful Status” and “Unlawful Presence”

(3) Definition of Unlawful Presence and Explanation of Related Terms

(4) General Considerations when Counting Unlawful Presence Time under Sections 212(a)(9)(B) and 

212(a)(9)(C)(i)(I) of the Act

(5) Triggering the Bar by Departing the United States

(6) Triggering the 3-Year and the 10-Year Bar but not the Permanent Bar When Departing with 

Advance Parole or with a Refugee Travel Document

(7) Multiple Grounds of Inadmissibility and the Relationship Between Sections 212(a)(9)(B)(i)(I), 

(B)(i)(II), and (C)(i)(I) of the Act

(8) Benefits That May Be Available Despite Inadmissibility under Section 212(a)(9)(B)(i)(I), 

(B)(i)(II), or (C)(i)(I) of the Act

(9) Effective Date of Sections 212(a)(9)(B) and (C)(i)(I) of the Act

(b) Determining When an Alien Accrues Unlawful Presence
(1) Aliens Present in Lawful Status or as Parolees

(A) Lawful Permanent Residents (LPRs)

(B) Lawful Temporary Residents (Section 245A(b) of the Act and 8 CFR 245a)

(C) Conditional Permanent Residents under Sections 216 and 216A of the Act

(D) Aliens Granted Cancellation of Removal or Suspension of Deportation

(E) Lawful Nonimmigrants

(i) Nonimmigrants Admitted until a Specific Date (Date Certain)

(ii) Nonimmigrants Admitted for Duration of Status (D/S)

(iii) Non-controlled Nonimmigrants (e.g. Canadian B-1/B-2)

(F) Other Types of Lawful Status

(i) Aliens in Refugee Status

(ii) Aliens Granted Asylum

(iii) Aliens Granted Temporary Protected Status (TPS) pursuant to Section 244 of the Act

(G) Aliens Present as Parolees

(2) Aliens Present in Unlawful Status Who Do Not Accrue Unlawful Presence by Statute for Purposes 

of Section 212(a)(9)(B) of the Act (Statutory Exceptions)

(A) Minors Who Are under 18 Years of Age

(B) Aliens with Pending Asylum Applications (Including Children Aging Out and Dependents of 

Asylum Applicants)

(C) Aliens Physically Present in the United States with pending Forms 1-730

(D) Beneficiary of Family Unity Protection (FUP) Granted pursuant to Section 301 of the 

Immigration Act of 1990; 8 CFR 236.15

(E) Certain Battered Spouses, Parents, and Children

(F) Victims of Severe Form of Trafficking in Persons

(G) Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status 

(COS] ("Tolling")

(3) Aliens Present in Unlawful Status Who Do Not Accrue Unlawful Presence By Virtue of USCIS 

Policy for Purposes of Sections 212(a)(9)(B) and (C)(i)(I) of the Act
(A) Aliens with Properly Filed Pending Applications for Adjustment of Status or Registry (Sections 

209, 245, 245(i), and 249 of the Act, Sections 202 of Public Law 99-603 Cuban Haitian 

Adjustment, Section 202(b) of the Nicaraguan Adjustment and Central American Relief Act 

(NACARA), section 902 of the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA))

(B) Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status 

(COS)("Tolling")

(C) Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status 

(COS) Who Depart the United States During the Pendency

(D) Nonimmigrants - Effect of a Decision on the Request for Extension of Status (EOS) or Change 

of Status (COS) on Unlawful Presence

(i) Approved Requests

(ii) Denials Based on Frivolous Filings or Unauthorized Employment

(iii) Denials of Untimely Applications

(iv) Denials for Cause of Timely Filed, Non-Frivolous Applications for EOS or COS

(v) Motion to Reopen/Reconsider

(vi) Appeal to the Administrative Appeals Office (AAO) of the Underlying Petition Upon 

Which an EOS or COS Is Based

(vii)Nonimmigrants - Multiple Requests for EOS or COS ("Bridge Filings") and Its Effect on 

Unlawful Presence

(E) Aliens with Pending Legalization Applications, Special Agricultural Worker Applications, and 

LIFE Legalization Applications

(F) Aliens granted Family Unity Program Benefits under Section 1504 of the LIFE Act 

Amendments of 2000

(G) Aliens with Pending Applications for Temporary Protected Status (TPS) pursuant to Section 

244 of the Act

(H) Aliens Granted Voluntary Departure pursuant to Section 240B of the Act

(I) Aliens Granted Stay of Removal

(J) Aliens Granted Deferred Action

(K) Aliens Granted Withholding of Removal under Section 241(b)(3) of the Act or Withholding 

of Deportation under Former Section 243 of the Act

(L) Aliens Granted Withholding of Removal or Deferral of Removal under the United Nations 

Convention Against Torture Pursuant to 8 CFR 208.16 and 8 CFR 208.17

(M)Aliens Granted Deferred Enforced Departure (OED)

(N) Aliens Granted Satisfactory Departure under 8 CFR 217.3
(4) Effect of the Protection from the Accrual of Unlawful Presence on Previously Accrued Unlawful 

Presence: Protection from the Accrual of Unlawful Presence Does Not Cure Previously Accrued 

Unlawful Presence

(5) Effect of Removal Proceedings on Unlawful Presence

(6) Effect of an Order of Supervision pursuant to 8 CFR 241.5 on Unlawful Presence

(c) Relief from Inadmissibility under Section 212(a)(9)(B)(i)(I) and (II), and Section 

212(a)(9)(C)(i)(I) of the Act

(1) Waiver of the 3-Year Bar or the 10-Year Bar under Section 212(a)(9)(B)(i) of the Act

(A) Nonimmigrants

(B) Immigrants and Adjustment of Status Applicants Who Are the Spouses, Sons, or Daughters of 

U.S. Citizens or LPRs, and Fiance(e) of U.S. Citizens

(C) Asylees and Refugees Applying for Adjustment of Status

(D) TPS Applicants

(E) Legalization under the CSS LULAC and NWRIP Class Settlement Agreements, and Legalization 

Applicants pursuant to 8 CFR 245a.2(k) and 8 CFR 245a.18

(2) Waiver of the Permanent Bar under Section 212(a)(9)(C)(i)(I) of the Act

(A) HRIFA and NACARA Applicants

(B) Legalization, SAW, LIFE Act Legalization, and Legalization Class Settlement Agreement 

Applicants

(C) TPS Applicants

(D) Certain Battered Spouses, Parents, and Children

(E) Asylee and Refugee Adjustment Applicants under Section 209(c) of the Act

Adjudicator’s Guidance: Chapter 40.9.2

(a) General Overview

If an alien, other than an alien lawfully admitted for permanent residence, accrues unlawful presence in the 

United States, he or she may be inadmissible pursuant to section 212(a)(9)(B)(i) (Three-year and Tenyear bars) or 212(a)(9)(C)(i)(I) of the Act (Permanent bar).

(1) Outline of Section 212(a)(9)(B)(i) and Section 212(a)(9)(C)(i)(I) of the Act
(A) Section 212(a)(9)(B)(i) of the Act - The 3-Year and the 10-Year Bars . section 212(a)(9)(B)(i) is 

broken into two (2) sub-groups:

· Section 212(a)(9)(B)(i)(I) of the Act (3-year bar)

This provision renders inadmissible for three (3) years those aliens, who were unlawfully present for more 

than 180 days but less than one (1) year, and who departed from the United States voluntarily prior to the 

initiation of removal proceedings.

· Section 212(a)(9)(B)(i)(II) of the Act (10-year bar)

This provision renders inadmissible an alien, who was unlawfully present for one (1) year or more, and 

who seeks again admission within ten (10) years of the date of the alien’s departure or removal from the 

United States.

Both bars can be waived pursuant to section 212(a)(9)(B)(v) of the Act.

(B) Section 212(a)(9)(C)(i)(I) of the Act - The Permanent Bar

This provision renders an individual inadmissible, if he or she has been unlawfully present in the United 

States for an aggregate period of more than one (1) year, and who enters or attempts to reenter the United 

States without being admitted.

An alien, who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act is permanently inadmissible; 

however, after having been outside the United States for at least ten (10) years, he or she may seek consent 

to reapply for admission pursuant to section 212(a)(9)(C)(ii) of the Act and 8 CFR 212.2 . A waiver is 

also available for certain Violence Against Women Act (VAWA) self-petitioners under section 

212(a)(9)(C)(iii) of the Act.

The 10-year absence requirement does not apply to a VAWA self-petitioner who is seeking a waiver 

under section 212(a)(9)(C)(iii) of the Act, rather than seeking consent to reapply under section 

212(a)(9)(C)(ii) of the Act.

A DHS regulation at 8 CFR 212.2 addresses the filing and adjudication of an application for consent to 

reapply (filed on Form I-212 ). As stated by the Board of Immigration Appeals (BIA) in Matter of TorresGarcia, 23 I&N Dec. 866 (BIA 2006), however, the consent to reapply regulation at 8 CFR 212.2 predates 

the enactment of section 212(a)(9)(C) of the Act and the related consent to reapply provision in section 

212(a)(9)(A)(iii) of the Act.

Thus, although the filing procedures in 8 CFR 212.2 are still in effect, the substantive requirements of section 
212(a)(9) of the Act govern during the adjudication of Form I-212 , Application for Permission to 

Reapply for Admission into the United States After Deportation and Removal.

A USCIS adjudicator must consider the specific requirements of section 212(a)(9)(C)(ii) of the Act when 

adjudicating Form I-212 that is filed by an alien who is inadmissible under section 212(a)(9)(C)(i) of the 

Act. That is, because of the 10-year absence requirement for consent to reapply, section 

212(a)(9)(C)(i)(I) of the Act is a permanent bar for which neither the retroactive nor the prospective 

grant of consent to reapply is possible.

The regulatory language at 8 CFR 212.2(i) and (j) is not applicable, see Torres-Garcia , at 875, and the alien 

has to be physically outside the United States for a period of at least ten years since his or her last departure 

before being eligible to be granted consent to reapply. See id ., at 876.

Finally, the regulatory language referring to the 5-year and the 20-year limitation on consent to reapply 

does not apply to section 212(a)(9)(C) of the Act; these limitations refer to former sections 

212(a)(6)(A) and (B) , the predecessors of current section 212(a)(9)(A) of the Act. See id . at 874 (for a 

historical analysis).

Also, an adjudicator should pay special attention to the possibility that an alien who is inadmissible 

under section 212(a)(9)(C)(i)(II) of the Act (because the alien entered or attempted to enter without 

admission after having been removed) may be subject to the reinstatement provision of section 

241(a)(5) of the Act (reinstatement of removal orders).

(2) Distinction Between “Unlawful Status” and “Unlawful Presence ”

To understand the operation of sections 212(a)(9)(B) and 212(a)(9)(C)(i)(I) of the Act, it is important 

to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful 

presence (“period of stay not authorized”). Although these concepts are related (one must be present in an 

unlawful status in order to accrue unlawful presence), they are not the same.

As discussed in chapters 40.9.2(b)(2) and 40.9.2(b)(3) of the AFM , there are situations in which an alien 

who is present in an unlawful status nevertheless does not accrue unlawful presence. As a matter of 

prosecutorial discretion, DHS may permit an alien who is present in the United States unlawfully, but who 

has pending an application that stops the accrual of unlawful presence, to remain in the United States while 

that application is pending. In this sense, the alien’s remaining can be said to be “authorized.” However, 

the fact that the alien does not accrue unlawfu l presence does not mean that the alien’s presence in the 

United States is actually lawful.

Example 1

An alien is admitted as a nonimmigrant, with a Form I-94 that expires on January 1, 2009. The alien 

remains in the United States after the Form I-94 expires. The alien’s status becomes unlawful, and she 
begins to accrue unlawful presence, on January 2, 2009. On May 10, 2009, the alien properly files an 

application for adjustment of status. 

The filing of the adjustment application stops the accrual of unlawful presence. But it does not “restore” 

the alien to a substantively lawful immigration status. She is still amenable to removal as a deportable 

alien under section 237(a)(1)(C) of the Act because she has remained after the expiration of her 

nonimmigrant admission. 

Example 2

An alien is admitted as a nonimmigrant, with a Form I-94 that expires on January 1, 2009. On October 

5, 2008, he properly files an application for adjustment of status. He does not, however, file any 

application to extend his nonimmigrant stay, which expires on January 1, 2009. The adjustment of 

status application is still pending on January 2, 2009. 

On January 2, 2009, he becomes subject to removal as a deportable alien under section 237(a)(1)(C) of 

the Act because he has remained after the expiration of his nonimmigrant admission. For purposes of 

future inadmissibility, however, the pending adjustment application protects him from the accrual of 

unlawful presence. 

The application of section 245(k) of the Act is a good example of the importance of clearly distinguishing 

unlawful status from the accrual of unlawful presence. Guidance concerning section 245(k) may be found 

in chapter 23.5(d) of the AFM . If the requirements of section 245(k) are met, this provision relieves 

certain employment-based immigrants of ineligibility under section 245(c)(2), (c)(7) or (c)(8) of the Act 

for adjustment of status.

For example, an alien who failed to maintain a lawful status after any entry is, ordinarily, ineligible for 

adjustment of status under section 245(c)(2) of the Act. Departure from the United States and return does, 

ordinarily, not relieve the alien of this provision. 8 CFR 245.1(d)(3) .

For an alien who is eligible for the benefit of section 245(k) of the Act, however, only a failure to 

maintain status since the last lawful admission is considered in determining whether the alien is subject 

to section 245(c)(2) , (c)(7) or (c)(8) of the Act. AFM Chapter 23.5(d)(4). Unless the alien, since the last 

lawful admission failed to maintain lawful status for at least 181 days, section 245(k) of the Act relieves the 

alien of ineligibility under section 245(c)(2), (c)(7) or (c)(8) of the Act.

As stated in chapters 40.9.2(b)(2) and 40.9.2(b)(3) of the AFM , some aliens who are actually present in 

an unlawful status , are, nevertheless, protected from accruing unlawful presence. But if their unlawful status 

continues for more than 180 days, in the aggregate, they would be ineligible for the benefit of section 

245(k) of the Act, even if they have accrued no unlawful presence for purposes of section 212(a)(9)(B) of the Act.

Example 3
An alien is admitted for “duration of status” as an F-1 nonimmigrant student. One year later, the alien 

drops out of school, and remains in the United States for one year after dropping out. 

The alien’s status became unlawful when she dropped out of school. Neither USCIS nor an IJ ever makes 

a finding that the alien was out of status; therefore, she never accrues any unlawful presence for 

purposes of section 212(a)(9)(B ) of the Act. AFM Chapter 40.9.2(b)(1)(E)(ii) . 

The alien eventually leaves the United States and returns lawfully as a nonimmigrant. While in 

nonimmigrant status, a Form I-140 is approved and the alien applies for adjustment of status. Because 

the alien failed to maintain a lawful status for more than 180 days during her prior sojourn, she is 

ineligible for adjustment under section 245(c)(2) of the Act, and section 245(k) of the Act does not 

relieve her of this ineligibility. 

Under section 245(k) of the Act, the alien is still eligible for adjustment, since the prior failure to 

maintain status does not apply to make the alien ineligible under section 245(c) of the Act. Also, the 

alien did not accrue unlawful presence despite the prior unlawful status, and so the alien is not inadmissible 

under section 212(a)(9)(B) of the Act. 

Example 4

The alien is admitted as a lawful nonimmigrant, and, while still in status, applies for adjustment of status 

on the basis of an approved Form I-140. While the Form I-485 is pending, the alien’s employment 

authorization documentation (EAD) expires, and the alien fails to apply for a new EAD. Nevertheless, the 

alien continues to work after the EAD expires. The period of unauthorized employment exceeds 180 

days. 

The alien would not be inadmissible under section 212(a)(9)(B) of the Act, since the pendency of 

the Form I-485 stopped the accrual of unlawful presence. Also, there has been no “departure” to trigger 

section 212(a)(9)(B) of the Act. Section 245(k) of the Act does not relieve the alien of ineligibility 

under section 245(c)(2) of the Act since the alien engaged in unauthorized employment for more than 

180 days. 

An alien who is present in a lawful status will not accrue unlawful presence as long as that lawful status is 

maintained.

(3) Definition of Unlawful Presence and Explanation of Related Terms

(A) Unlawful Presence

Section 212(a)(9)(B)(ii) of the Act defines “unlawful presence” for purposes of sections 

212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act to mean that an alien is deemed to be unlawfully 

present in the United States, if the alien is:

· present after the expiration of the period of stay authorized by the Secretary of Homeland Security; or
· present without being admitted or paroled.

(B) Period of Stay Authorized (Authorized Stay)

When nonimmigrants are admitted into the United States, the period of stay authorized is generally noted 

on Form I-94 , Admission/Departure Record. Additionally, by policy, USCIS has designated other statuses -

including some that are not actually lawful - as “periods of stay authorized.” see the more detailed analysis 

in AFM chapters 40.9.2(b) and 40.9.2(c) .

(C) Admission

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (Div. C of Departments 

of Commerce, Justice, and State, and the Judiciary Appropriations Act of 1997, PL 104-208 (September 30, 

1996)) amended section 101(a)(13) of the Act by removing the definition of the term “entry,” and by 

replacing it with a definition of the terms “admission” and “admitted.”

Section 101(a)(13)(A) of the Act now defines “admission” and “admitted” as “the lawful entry of the 

alien into the United States after inspection and authorization by an immigration officer.” See section 

101(a)(13)(A) of the Act.

Section 101(a)(13)(B) of the Act furthermore clarifies that parole is not admission, and that an alien 

crewman, who is permitted to land temporarily in the United States, shall not be considered to have been 

admitted. See section 101(a)(13)(B) of the Act.

(D) Parole

Parole is the discretionary decision, under section 212(d)(5)(A) of the Act, to permit an inadmissible alien 

to leave the inspection facility free of official custody, so that, although the alien is not admitted, the alien 

is permitted to be physically present in the United States.

By statutory definition, parole is not admission. See section 101(a)(13)(B) of the Act. An alien, who has 

been paroled under section 212(d)(5)(A) of the Act “[is] still in theory of law at the boundary line and 

[has] gained no foothold in the United States.” Leng May Ma v. Barber , 357 U.S. 185, 188-189 (1958), quoting 

Kaplan v. Tod , 267 U.S. 228 (1925).

Parole may be granted on a case-by-case basis for urgent humanitarian reasons (humanitarian parole) or for 

significant public benefit. See section 212(d)(5)(A) of the Act and 8 CFR 212.5 .

Deferred inspection and advance parole are parole, as are individual port of entry paroles and paroles 
authorized while a person is overseas. Section 212(a)(9)(B)(ii) of the Act makes clear that an alien, who 

has been paroled, does not accrue unlawful presence as long as the parole lasts.

For purposes of unlawful presence, the reason for the grant of parole is irrelevant. For more information on 

parole pursuant to section 212(d)(5) of the Act, see AFM chapter 54 .

Only parole under section 212(d)(5)(A) of the Act qualifies as parole for purposes of section 

212(a)(9) of the Act. In an April 1999 memorandum and an August 1998 legal opinion (Legal Opinion 

No. 98-10, August 21, 1998), former INS suggested that a release under section 236 of the Act 

(conditional parole) could also be considered “parole” for purposes of adjustment of status under 

the Cuban Adjustment Act .

The Board of Immigration Appeals (BIA) has rejected this interpretation in at least one unpublished 

decision. See Matter of Ortega-Cervantes, 2005 WL 649116 (BIA, January 6, 2005). The Ninth Circuit confirmed 

the BIA’s decision and held that release under section 236 of the Act was not “parole” for purposes of 

adjustment of status. See Ortega-Cervantes v. Gonzales , 501 F.3d 1111 (9th Cir. 2007).

DHS/Office of the General Counsel reconsidered that aspect of the 1999 memorandum, and the related 

1998 legal opinion. On September 28, 2007, it issued a memorandum stating that release under section 

236 of the Act is not deemed to be a form of parole under section 212(d)(5) of the Act. See September 28, 

2007 Memorandum, Office of the General Counsel of the Department of Homeland Security, Clarification of 

the Relation Between Release Under Section 236 and Parole Under Section 212(d)(5) of the Immigration and Nationality Act .

As of the release of this AFM chapter, the Ninth Circuit is the only circuit that has decided this issue, 

although several circuits have cases outstanding. If the adjudicator encounters the issue, he or she is advised 

to inquire with the USCIS Office of the Chief Counsel (Adjudications Law Division) about the status of any 

pending litigation or further developments.

(4) General Considerations when Counting Unlawful Presence Time Under Sections 212(a)(9)(B) and 

212(a)(9)(C)(i)(I) of the Act

(A) Unlawful Presence for Purposes of the 3-Year and 10-Year Bars Is Not Counted in the Aggregate

Section 212(a)(9)(B)(i) of the Act only applies to an alien, who has accrued the required amount of 

unlawful presence during any single stay in the United States; the length of the alien’s accrued unlawful 

presence is not calculated by combining periods of unlawful presence accrued during multiple unlawful 

stays in the United States.

If, during any single stay, an alien has more than one (1) period during which the alien accrues unlawful 

presence, the length of each period of unlawful presence is added together to determine the total period of 

unlawful presence time accrued during that single stay.
Reminder

The statutory provisions of the 3-year and the 10-year bars became effective on or after April 1, 1997. 

An alien, who was unlawfully present in the United States prior to April 1, 1997, started to accrue 

unlawful presence on April 1, 1997, if he or she remained present in the United States at that time. An 

alien, who was unlawfully present in the United States prior to April 1, 1997, but departed prior to April 

1, 1997, did not accrue any unlawful presence for purposes of section 212(a)(9)(B) of the Act. 

Example 1

An alien’s status becomes unlawful, and the alien begins to accrue unlawful presence on April 1, 2004. 

On September 1, 2004 (150 days after April 1, 2004), the alien files an adjustment of status application. 

The alien does not accrue unlawful presence while the adjustment application is pending. See 

AFM chapter 40.9.2(b)(3)(A) . 

The adjustment application is denied on October 15, 2006 (administratively final decision). After the 

denial, the alien continues to remain in the United States unlawfully; the accrual of unlawful presence 

resumes on October 16, 2006, a day after the application is denied. 

The alien leaves the United States on January 1, 2007. At that time, the individual had accrued unlawful 

presence from April 1, 2004 to September 1, 2004, and again from October 16, 2006 to January 1, 

2007. The total period of unlawful presence time accrued during this single unlawful stay exceeds 180 

days. 

By departing the United States on January 1, 2007, the alien triggered the three-year bar and is 

inadmissible under section 212(a)(9)(B)(i)(I) of the Act. 

Example 2

An alien’s status becomes unlawful, and the alien begins to accrue unlawful presence on April 1, 2004. 

On September 1, 2004, the alien leaves the United States. The alien returns unlawfully on October 15, 

2006. He departs the United States again on January 1, 2007. 

Although the alien has been unlawfully present in the United States for more than 180 days in the 

aggregate, the unlawful presence was accrued during two (2) separate stays in the United States; during 

each of these stays, the alien accrued less than 180 days of unlawful presence. Thus, the alien is not 

inadmissible under section 212(a)(9)(B)(i)(I) of the Act. 

(B) Unlawful Presence for Purposes of the Permanent Bar Is Counted in the Aggregate

Under section 212(a)(9)(C)(i)(I) of the Act, the alien’s unlawful presence is counted in the aggregate, i.e. 

the total amount of unlawful presence time is determined by adding together all periods of time during 

which an alien was unlawfully present in the United States on or after April 1, 1997.
Therefore, if an alien accrues a total of more than one (1) year of unlawful presence time, whether accrued 

during a single stay or during multiple stays , departs the United States, and subsequently reenters or 

attempts to reenter without admission, he or she is subject to the permanent bar of section 

212(a)(9)(C)(i)(I) of the Act.

Example

An alien enters the United States unlawfully on April 1, 2004, and leaves on September 1, 2004. The 

alien has accrued about 150 days of unlawful presence at this time. She reenters the United States 

unlawfully on January 1, 2005 and stays until November 1, 2005. This time, the alien has accrued 300 

days of unlawful presence. 

Although neither period of unlawful presence exceeds one (1) year, the aggregate period of unlawful 

presence does exceed one (1) year by totaling 450 days of unlawful presence, which the alien accrued 

during both stays. If the alien ever returns or attempts to return to the United States without being 

admitted, he or she will be inadmissible under section 212(a)(9)(C)(i)(I) of the Act. 

(C) Specific Requirements for Inadmissibility under Section 212(a)(9)(B)(i)(I) of the Act (The 3-Year Bar)

For the three-year bar to apply, the individual must have accrued at least 180 days but less than one (1) 

year of unlawful presence, and thereafter, must have departed voluntarily prior to the commencement of 

removal proceedings. Any period of unlawful presence accrued prior to April 1, 1997, does not count for 

purposes of section 212(a)(9)(B)(i)(I) of the Act.

The alien does not need a formal grant of voluntary departure by DHS for his or her departure to be 

considered voluntary. However, if DHS grants voluntary departure, the departure is still voluntary because 

removal proceedings have not yet commenced.

The statutory language of section 212(a)(9)(B)(i)(I) of the Act specifically requires that the alien must 

have departed the United States prior to the commencement of removal proceedings. Removal proceedings 

commence with the filing of the Notice to Appear (NTA) with the immigration court following service of 

the NTA on the alien. See 8 CFR 1003.14 .

An alien, who departs the United States after the NTA has been filed with the immigration court, therefore, 

is not subject to the three-year bar according to the statutory language.

To avoid future inadmissibility, however, the alien must leave before he or she has accrued more than one 

year of unlawful presence, and becomes inadmissible under section 212(a)(9)(B)(i)(II) of the Act, rather 

than section 212(a)(9)(A)(i)(I) of the Act. This provision provides the alien with an incentive to end his 

or her unlawful presence by leaving the United States, rather that contesting removal.
The burden is on the applicant to establish that the NTA had already been filed by the time the applicant 

had departed. The record of proceedings before the immigration court will generally indicate when the 

NTA was actually filed, and the filing date shown in the court’s record will be controlling.

Even if the applicant is not subject to the three-year or the ten-year bar, there may be other grounds of 

inadmissibility that apply based on the fact that the removal proceedings were initiated and the alien 

departed the United States during the proceedings. For example, a conviction that made the alien subject to 

removal as a deportable alien may also make the alien inadmissible.

(D) Specific Requirements for Inadmissibility under Section 212(a)(9)(B)(i)(II) of the Act (The 10-Year 

Bar)

An alien, who voluntarily departs the United States or who was removed from the United States after 

having been unlawfully present for more than one (1) year, triggers the 10-year bar to admission 

under section 212(a)(9)(B)(i)(II) of the Act. Any period of unlawful presence accrued prior to April 1, 

1997 does not count for purposes of section 212(a)(9)(B)(i)(II) of the Act.

Unlike the 3-year bar, the 10-year bar applies even if the alien leaves after removal proceedings have 

commenced; the individual will be inadmissible, even if he or she leaves after the NTA has been filed with 

the immigration court. Moreover, filing the NTA does not stop the accrual of unlawful presence. 8 CFR 

239.3 .

(E) Specific Requirements for Inadmissibility under Section 212(a)(9)(C)(i)(I) of the Act (The Permanent 

Bar)

(i) General Requirements

To be permanently inadmissible under section 212(a)(9)(C)(i)(I) of the Act, an alien must have accrued 

more than one (1) year of unlawful presence in the aggregate, must have left the United States thereafter, 

and must then have entered or attempted to reenter the United States without being admitted. Any 

unlawful presence accrued prior to April 1, 1997, or any unlawful entry or attempted reentry into the 

United States prior to April 1, 1997, does not count for purposes of inadmissibility under section 

212(a)(9)(C)(i)(I) of the Act.

(ii) Special Note on the Effect of An Alien’s Entry on Parole After Having Accrued More Than One (1) Year 

Of Unlawful Presence

Is an alien, who had accrued more than one (1) year of unlawful presence, and who is paroled into the 

United States but not admitted, subject to section 212(a)(9)(C)(i)(I) of the Act?

An alien’s inadmissibility under section 212(a)(9)(C)(i)(I) of the Act is fixed at the time of the alien’s 

unlawful entry or attempted reentry.
An alien who had accrued more than one (1) year of unlawful presence, and who has never returned or 

attempted to return without admission after that unlawful presence, and who is paroled into the United 

States pursuant to section 212(d)(5) of the Act, but not admitted, is not subject to inadmissibility 

under section 212(a)(9)(C)(i)(I) of the Act.

It is the Department of Homeland Security’s (DHS) policy that for purposes of section 212(a)(9)(C)(i)(I) 

inadmissibility, an alien’s parole is not deemed to be an “entry or attempted reentry without being 

admitted,” even though parole is not considered admission. See section 101(a)(13)(B) and section 

212(d)(5)(A) of the Act.

This conclusion reflects the legal principle that, although a parolee is actually allowed to physically enter 

the United States, a parolee is deemed to be at a port of entry, pending a final decision on whether to admit 

the alien or not. See Leng May Ma v. Barber , 357 U.S. 185, 188-189 (1958), quoting Kaplan v.Tod , 267 U.S. 228 

(1925).

As noted, however, an alien’s inadmissibility for returning unlawfully after accruing sufficient unlawful 

presence is fixed at the time of the alien’s unlawful return or attempt to return. Paroling an alien who is 

already inadmissible does not relieve the alien of inadmissibility.

For example, if an alien who is already present in the United States without being admitted because he or 

she entered without inspection, and who, in the past, had accumulated unlawful presence in excess of one 

(1) year, is taken into custody, and then later paroled pursuant to section 212(d)(5) of the Act, the alien’s 

parole would not relieve the alien of inadmissibility under section 212(a)(9)(C)(i) of the Act.

For a more detailed explanation and examples, see AFM Chapter 40.9.2(a)(6)(B) .

(5) Triggering the Bar by Departing the United States

An alien must leave the United States after accruing more than 180 days or one (1) year of unlawful 

presence in order to trigger the 3-year or 10-year bar to admission under section 212(a)(9)(B) of the Act. 

This includes departures made while traveling after having approved advance parole or with a valid refugee 

travel document. See AFM Chapter 40.9.2(a)(6) .

Note:

By granting advance parole or a refugee travel document, USCIS does not authorize the alien’s departure 

from the United States; it merely provides a means for the alien to return to the United States, regardless 

of admissibility. Therefore, even if the alien has an advance parole document, the alien’s actual departure 

from the United States will still trigger the bar to inadmissibility under section 212(a)(9)(B) of the 

Act. 
Section 212(a)(9)(C)(i)(I) of the Act does not explicitly mention “departure” as a prerequisite for the bar 

to apply. However, according to the wording of the statute, an alien with the requisite period of unlawful 

presence must “enter or attempt to enter without admission” in order to incur inadmissibility.

Thus, the alien cannot violate the provision unless the alien leaves the United States and then returns or 

attempts to return. See Matter of Rodarte-Roman , 23 I&N Dec. 905 (BIA 2006) (Departure triggers the bars; the 

IJ erred when denying adjustment of status because of the individual’s accrual of unlawful presence in 

excess of one (1) year without departure).

(6) Triggering the 3-Year and the 10-Year Bars But Not the Permanent Bar When Departing with Advance 

Parole or with a Refugee Travel Document

(A) Travel on Advance Parole Issued to Applicants for Adjustment of Status on Form I-512 , Authorization 

For Parole Of An Alien Into The United States, pursuant to 8 CFR 212.5(f) and 8 CFR 245.2(a)(4)

An alien with a pending adjustment of status application, who has accrued more than 180 days of unlawful 

presence time, will trigger the bars to admission, if he or she travels outside the United States subsequent to 

the issuance of an advance parole document.

When the alien presents the advance parole document at a port of entry, he or she may be permitted to 

return to the United States as a parolee because aliens who request parole into the United States are not 

required to establish admissibility under section 212(a) of the Act.

However, the fact that the alien is permitted to return to the United States as a parolee does not confer a 

waiver of inadmissibility under section 212(a)(9)(B)(i)(I) and (II) of the Act. Consequently, a waiver 

under section 212(a)(9)(B)(v) of the Act would be required when determining the alien’s eligibility to 

adjust status to lawful permanent residence.

(B) A Special Note on the Effect on Section 212(a)(9)(C) of the Act of an Alien’s Entry on Parole After 

Having Accrued More Than One (1) Year Of Unlawful Presence

Parole is not admission. See section 101(a)(13)(B) of the Act. An individual is subject to section 

212(a)(9)(C)(i)(I) of the Act, if he or she has accrued more than one (1) year of unlawful presence in the 

United States during a single stay or during multiple stays, who departs, and subsequently enters or 

attempts to reenter “without being admitted.”

The statutory language omits the word “parole” and makes it unclear whether an alien, who enters on 

parole, triggers the bar to inadmissibility under section 212(a)(9)(C) of the Act.

Therefore, if an alien is paroled into the United States pursuant to section 212(d)(5)(A) of the Act after 
having accrued more than one (1) year of unlawful presence, is he or she inadmissible under section 

212(a)(9)(C)(i)(I) of the Act because the alien was not “admitted”? The answer is “no” for the following 

reason:

An alien’s inadmissibility pursuant to section 212(a)(9)(C)(i)(I) of the Act is fixed as of the date of the 

alien’s entry or attempted reentry without being admitted.

If an alien, who has accrued unlawful presence in excess of one (1) year, came to a port of entry and 

applied for admission to the United States or asked to be paroled into the United States, the alien will not 

be deemed to have attempted to enter the United States without “being admitted,” if DHS actually paroles 

the alien.

The significant point is that the alien will have arrived at a port of entry and presented himself or herself for 

inspection. If the alien is paroled, the alien will continue to be considered an applicant for admission, and 

so cannot be said to have entered or attempted to enter without admission.

Thus, if DHS paroles the alien under section 212(d)(5) of the Act, the alien’s departure and subsequent 

return as a parolee does not trigger the section 212(a)(9)(C)(i)(I) -bar for purposes of a subsequent 

admissibility determination by DHS (such as at the time of the adjustment of status adjudication).

This conclusion reflects the legal principle that, although a parolee is actually allowed to physically enter 

the United States, a parolee is deemed to be at a port of entry, pending a final decision on whether to admit 

the alien or not. See Leng May Ma v. Barber , 357 U.S. 185, 188-189 (1958), quoting Kaplan v. Tod , 267 U.S. 228 

(1925).

Example:

As an example, assume the following: 

· An alien enters the United States on a B visa: 

· The status expires on January 1, 2000. 

· On January 2, 2000, the individual commences to accrue unlawful presence as having overstayed his 

or her period of admission. 

· The alien applies for adjustment of status on January 1, 2005. 

The individual is in authorized stay during the pendency of the adjustment of status application and does 

not accrue unlawful presence. See AFM chapter 40.9.2(b)(3)(A) . 

Based on the pending adjustment application, the alien applies for advance parole ( Form I-131 ) which 

is approved. The alien then leaves the United States on April 1, 2005; at this time, the alien has triggered 
the 10-year bar to admission to the United States because the alien had accrued unlawful presence in 

excess of one (1) year (from January 2, 2000, to January 1, 2005). 

On April 15, 2005, the alien returns to the United States through a port of entry, presents his advance 

parole document, and is paroled into the United States. The alien will not be considered to have 

triggered inadmissibility under section 212(a)(9)(C)(i)(I) of the Act. 

Because the alien is currently a parolee, the alien is deemed to still be at the port of entry. At the time of 

the adjudication of the adjustment of status application, the alien’s request for admission (through the 

adjustment of status application) will be decided. 

Thus, the individual is a parolee, he or she is not deemed to have “entered or attempted to reenter 

without being admitted.” 

Note:

The alien still may be inadmissible under section 212(a)(9)(B) of the Act at the time of the adjustment 

of status application. 

By contrast, the parole of an alien after the alien had already become inadmissible under section 

212(a)(9)(C)(i) would not relieve the alien of inadmissibility under section 212(a)(9)(C)(i) of the 

Act. 

Example

As an example, assume the following: An alien enters the United States on a B visa. The status expires on 

January 1, 2000. On January 1, 2000, the alien commences to accrue unlawful presence for having 

overstayed his or her period of admission. 

The alien applies for adjustment of status on January 1, 2005. The alien departs the United States and 

returns illegally by crossing the border 30 miles west of the nearest port of entry on April 15, 2005. 

The alien is now inadmissible under section 212(a)(9)(C)(i)(I) of the Act. (An additional 

consequence, unrelated to the illegal entry, is that the alien also abandoned his or her adjustment 

application). 

Even if the alien were later taken into custody and paroled under section 212(d)(5) of the Act, or were 

to later travel and return on a grant of advance parole, the alien would remain inadmissible under section 

212(a)(9)(C)(i)(I) of the Act since the alien did, in fact, enter without admission after having accrued 

the requisite period of unlawful presence. 

The instructions to Form I-131 , Application for Travel Document, and Form I-485 , Application to 

Register Permanent Residence or Adjust Status, as well as the standard Form I-512 , Authorization for

Parole of an Alien into the United States, include language warning the alien that traveling abroad and 

returning to the United States by using Form I-512 may make the alien inadmissible under section 

212(a)(9)(B) of the Act.
(C) Travel on a Valid Refugee Travel Document Issued pursuant to Section 208(c)(1)(C) of the Act and 8 

CFR 223

An asylee who had accrued more than 180 days of unlawful presence time prior to having filed the bona 

fide asylum application, will trigger the bar to admission, if he or she departs the United States while 

traveling on a valid refugee travel document. When the asylee presents the travel document at a port of 

entry, he or she can be permitted to reenter the United States to resume status as an asylee; however, the 

asylee will be inadmissible when he or she applies to adjust status to lawful permanent reside nt, and a 

waiver would be required at that time.

(7) Multiple Grounds of Inadmissibility and the Relationship Between Sections 212(a)(9)(B)(i)(I), 

(B)(i)(II), and (C)(i)(I) of the Act

Sections 212(a)(9)(B)(i)(I) , (B)(i)(II) , and (C)(i)(I) of the Act establish different grounds of 

inadmissibility based on prior unlawful presence. Whether a specific ground applies to an alien depends on 

an analysis of the facts of the person’s case in light of that specific ground.

It is possible that the alien’s immigration history makes the alien inadmissible under both section 

212(a)(9)(B) of the Act and section 212(a)(9)(C)(i)(I) of the Act.

Example:

An alien with more than one (1) year of unlawful presence leaves the United States, thus triggering the 

10-year bar to admissibility under section 212(a)(9)(B)(i)(II) of the Act. 

Three (3) years after the alien’s last departure, the alien returns to the United States and enters illegally, 

thus without having been admitted. The alien is now inadmissible under sections 212(a)(9)(B)(i)(II) 

and 212(a)(9)(C)(i)(I) of the Act. 

Also, an alien with sufficient unlawful presence who is removed from the United States, may be 

inadmissible under section 212(a)(9)(A), as well as section 212(a)(9)(B)(i)(II) and/or section 

212(a)(9)(C)(i) of the Act depending on the circumstances of the individual case.

(8) Benefits That May Be Available Despite Inadmissibility under Section 212(a)(9)(B)(i)(I), (B)(i)(II), or 

(C)(i)(I) of the Act

AFM Chapter 40.9.2(c) specifies forms of relief from inadmissibility under Sections 

212(a)(9)(B)(i)(I) , (B)(i)(II) , and (C)(i)(I) of the Act (“Waivers”). Even without a grant of a waiver, 

aliens who are subject to these grounds of inadmissibility, may still obtain certain benefits as outlined 

below in AFM Chapters 40.9.2(b)(2) and 40.9.2(b)(3) , if otherwise eligible.
(A) Under Section 212(a)(9)(B)(i)(I) or (II) of the Act . An alien, who is inadmissible under section 

212(a)(9)(B)(i) of the Act may apply for and receive, if eligible, a grant of:

· Registry under section 249 of the Act;

· Adjustment of status under section 202 of NACARA;

· Adjustment of status under section 902 of HRIFA ;

· Adjustment of status under section 245(h)(2)(A) of the Act;

· Change to V nonimmigrant status under 8 CFR 214.15 (but the alien may need a waiver to obtain 

adjustment of status to LPR after having acquired V nonimmigrant status);

· LPR status pursuant to the LIFE Legalization Provision: A Legalization applicant under section 1104 of 

the LIFE Act may travel with authorization during the pendency of the application without triggering 

inadmissibility under section 212(a)(9)(B) of the Act. See 8 CFR 245a.13(e)(5) .

(B) Under Section 212(a)(9)(C)(i)(I) of the Act

An alien who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act may apply for and receive, if 

eligible, a grant of registry under section 249 of the Act.

(C) Special Concerns Regarding Section 245(i) – Applications

The USCIS position is that inadmissibility under section 212(a)(9)(B) or (C) of the Act makes an alien 

ineligible for adjustment of status under section 245 of the Act, regardless of whether the alien applies 

under section 245(a) or section 245(i) of the Act.

The BIA has endorsed this view. In Matter of Briones , 24 I&N Dec. 355 (BIA 2007), the Board held that an 

alien who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act is not eligible for adjustment under 

section 245(i) of the Act. An alien who is inadmissible under section 212(a)(9)(B) of the Act is also 

ineligible for section 245(i) adjustment. Matter of Lemus , 24 I&N Dec. 373 (BIA 2007).

USCIS adjudicators will follow Matter of Briones and Matter of Lemus in all cases, regardless of the decisions of the 

Ninth Circuit in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) or of the Tenth Circuit in Padilla-Caldera v. 

Gonzales, 453 F.3d 1237 (10th Cir. 2005). Following these Board cases, rather than Acosta and Padilla-Caldera , 

will allow the Board to reexamine the continued validity of these court decisions.
USCIS adjudicators should also be aware that the Ninth Circuit has held that the Board’s decision in Matter of 

Torres-Garcia, 23 I&N Dec. 866 (BIA 2006) is entitled to judicial deference, and that the decision in PerezGonzales v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), is no longer good law. Gonzales v. Department of Homeland 

Security, 508 F.3d 1227 (9th Cir. 2007).

(9) Effective Date of Sections 212(a)(9)(B) and (C)(i)(I) of the Act

(A) Effective Date

Only periods of unlawful presence spent in the United States after the April 1, 1997, effective date of 

the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Div. C of Departments of 

Commerce, Justice, and State, and the Judiciary Appropriations Act of 1997, PL 104-208 (September 30, 

1996))(IIRIRA), count towards unlawful presence for purposes of section 212(a)(9)(B) and (C)(i)(I) of 

the Act.

For purposes of section 212(a)(9)(C)(i)(I) of the Act, one (1) full year of unlawful presence must have 

accrued. Therefore, the earliest an individual could have been subjected to this ground of inadmissibility 

was April 2, 1998.

(B) The Child Status Protection Act and Its Influence on Unlawful Presence

On August 6, 2002, the Child Status Protection Act (CSPA) (PL 107-208, August 6, 2002) was enacted to 

provide relief to certain children, who “aged-out” during the processing of certain applications.

The CSPA applies to derivative children of asylum and refugee applicants, children of United States citizens, 

children of Lawful Permanent Residents (LPRs), and derivative beneficiaries of family-based, employmentbased, and diversity visas.

The CSPA changes how a child’s age should be calculated for purposes of eligibility for certain immigration 

benefits; it does not change the definition of “child” pursuant to section 101(b)(1) of the Act.

The CSPA was effective on August 6, 2002. In general, its provisions are not retroactive: Any qualified 

petition or application that was pending on the effective date is subject to the provisions of the CSPA. For 

detailed information, consult the policy memorandum, Domestic Operations, April 30, 2008, Revised 

Guidance for the Child Status Protection Act (AD07-04), or AFM Chapter 21.2(e) .

Calculation of Unlawful Presence, if the CSPA Is Applicable : Any derivative beneficiary child who is in a 

“period of stay authorized” because of a pending application or petition, does not accrue unlawful presence 

merely because of his or her “aging-out,” if the requirements and conditions of the CSPA are met. For 

more information about the applicability of the CSPA, see AFM sections describing individual types of 

immigration benefits and Chapter 21.2(e) .
The CSPA applies only to those benefits expressly specified by the statute. Nothing in the CSPA provides 

protection for nonimmigrant visa holders (such as K or V nonimmigrants), or to NACARA, HRIFA, Family 

Unity, Cuban Adjustment Act, and Special Immigrant Juvenile Applicants, and/or derivatives.

However, there may be limited coverage for K-2 and K-4 individuals. See Chapter 21.2(e) . This list is not 

exhaustive.

(b) Determining When an Alien Accrues Unlawful Presence

(1) Aliens Present in Lawful Status or as Parolees

An alien does not accrue unlawful presence, if he or she is present in the United States under a period of 

stay authorized by the Secretary of Homeland Security, or if he or she has been inspected and paroled into 

the United States and the parole is still in effect.

An alien who is present in the United States without inspection accrues unlawful presence from the date of 

the unlawful arrival, unless the alien is protected from the accrual of unlawful presence as described in 

this AFM chapter.

Note:

An alien, who arrived at a port of entry and obtained permission to come into the United States by 

making a knowingly false claim to be a citizen, is present in the United States without having been 

inspected and admitted. See Matter of S--, 9 I&N Dec. 599 (BIA 1962). 

(A) Lawful Permanent Residents (LPRs )

An alien lawfully admitted for permanent residence will not accrue unlawful presence unless the alien 

becomes subject to an administratively final order of removal by the IJ or the BIA (which means that during 

the course of proceedings, the alien was found to have lost his or her LPR status), or if he or she is 

otherwise protected from the accrual of unlawful presence. Unlawful presence will start to accrue the day 

after the order becomes administratively final, and not on the date of the event that made t he alien subject 

to removal.

(B) Lawful Temporary Residents (Section 245A(b) of the Act and 8 CFR 245a)

A lawful temporary resident must file an application to adjust from temporary to permanent resident status 

before the beginning of the 43 third month from the date he or she was granted lawful temporary resident 

status. See 8 CFR 245a.3(a)(2) .

However, unlike conditional permanent residents, the status of a lawful temporary resident does not 
automatically terminate, if the alien fails to file a timely application, and DHS needs to advise the alien of its 

intent to terminate his or her Temporary Residence Status. See section 245A(b)(2) of the Act, and 8 CFR 

245a.2(u)(2) .

The same procedures apply, if the alien’s status is terminated for the reasons specified in section 

245A(b)(2) of the Act. Lawful Temporary Resident status also terminates upon the entry of a final order of 

deportation, exclusion, or removal. See 8 CFR 245.2(u)(2).

If DHS advises the alien of its intent to terminate lawful temporary resident status, the alien continues to be 

a lawful temporary resident and does not accrue unlawful presence until a notice of termination is issued.

If the termination is appealed, the period of authorized stay continues through the administrative appeals 

process. The termination of an alien’s lawful temporary resident status cannot be reviewed in removal 

proceedings before an immigration judge. The alien would accrue unlawful presence time during removal 

proceedings or while a petition for review is pending in Federal court.

(C) Conditional Permanent Residents under Sections 216 and 216A of the Act

(i) Termination upon the Entry of an Administratively Final Order of Removal

As is the case with other LPRs, an alien lawfully admitted for permanent residence on a conditional basis 

under section 216 or 216A of the Act begins to accrue unlawful presence upon the entry of an 

administratively final order of removal.

A conditional LPR will also accrue unlawful presence before the entry of an administratively final removal 

order, if USCIS terminates the alien’s conditional LPR status, as described below.

(ii) Automatic Termination

Pursuant to section 216 or 216A of the Act, an alien, who was granted conditional permanent resident 

status must properly file a petition to remove the conditions placed on his or her status within the 90-day 

period immediately preceding the second anniversary of the date on which lawful permanent resident 

status on a conditional basis was granted. See Sections 216(c)(1) and 216A(c)(1) of the Act.

The petition is filed on Form I-751 , Petition to Remove Conditions of Residence, or on Form I-829 , 

Petition by Entrepreneur to Remove Conditions. See 8 CFR 216.4 and 8 CFR 216.6 .

Failure to do so results in the automatic termination of conditional resident status and the initiation of 

removal proceedings at the expiration of the 90-day period, unless the parties can establish good cause for 

failure to file the petition. See section 216(c)(2) and 8 CFR 216.4(a)(6) ; section 216A(c)(2) and 8 CFR 

216.6(a)(5) ; section 216(c)(4) and 8 CFR 216.5 .
The alien begins to accrue unlawful presence as of the date of the second anniversary of the alien’s lawful 

admission for permanent residence. See id . Also, failure to appear for the personal interview that may be 

required by USCIS in relation to the Form I-751 or I-829 petition results in the automatic termination of 

the conditional legal permanent resident status, unless the parties establish good cause for the failure to 

appear. See section 216(c)(2)(A) of the Act and 8 CFR 216.4(b)(3) ; section 216A(c)(2)(A) of the Act 

and 8 CFR 216.6(b)(3) .

(iii) Late Filings of the Petition to Remove the Conditional Basis Of LPR Status by the Alien

Current regulations at 8 CFR 216.4(a)(6) and 8 CFR 216.6(a)(5) allow a conditional resident to submit a 

late filing to USCIS, if jurisdiction has not yet vested with the immigration judge, and if certain 

requirements are met. If the late filed petition is accepted and approved, no unlawful presence time will be 

deemed to have accrued.

If jurisdiction has already vested with the immigration judge, the judge may terminate removal proceedings 

upon joint motion by the alien and DHS. Consequently, if a late filing is accepted and approved while the 

alien is in proceedings, the alien will not accrue unlawful presence time.

If, however, the late filing is rejected, the alien begins to accrue unlawful presence time on the date his or 

her status as a conditional resident automatically terminated.

(iv) Termination on Notice

If DHS advises the alien of its intent to terminate conditional permanent resident status, the alien continues 

to be a conditional permanent resident and does not accrue unlawful presence until a notice of termination 

is issued.

The alien begins to accrue unlawful presence on the day after the notice of termination is issued, unless the 

alien seeks review of the termination in removal proceedings. See 8 CFR 216.3.

(v) Review in Removal Proceedings

If the alien seeks review of the termination in removal proceedings, DHS bears the burden of proving that 

the termination was proper. Thus, the alien will be deemed not to accrue unlawful presence unless the 

immigration judge affirms the termination. See 8 CFR 216.3.

If the immigration judge affirms the termination, the alien will begin to accrue unlawful presence on the 

day after the immigration judge’s removal order becomes administratively final.

(D) Aliens Granted Cancellation of Removal or Suspension of Deportation
Section 240A of the Act provides for two (2) different types of cancellation of removal:

· Cancellation of removal for an alien who has been admitted for permanent residence, section 

240A(a) of the Act, and

· Cancellation of removal and adjustment of status for certain aliens who have been present in the United 

States for a period of not less than ten (10) years, section 240A(b) of the Act.

Therefore, the effect of a grant of cancellation of removal on the accrual of unlawful presence (or of 

suspension of deportation under former section 244 of the Act) depends on the alien’s status immediately 

before relief was granted, and as outlined below:

· If an alien who has already acquired LPR status becomes subject to removal but applies for and receives 

a grant of cancellation of removal under section 240A(a) of the Act, or a grant of suspension of deportation 

under former section 244 of the Act, the alien retains his or her LPR status. No period of unlawful presence 

will have accrued because the grant of cancellation or suspension prevents the loss of LPR status.

· If an alien who is not already an LPR obtains a grant of cancellation of removal under section 

240A(b) of the Act, or a grant of suspension of deportation under former section 244 of the Act, the alien 

becomes an alien lawfully admitted for permanent residence as of the date of the final decision granting 

relief.

As such, the alien will no longer accrue unlawful presence after cancellation of removal or suspension of 

deportation is granted. Moreover, given the special nature of these forms of relief, any unlawful presence 

that may have accrued before the grant of cancellation of removal or suspension of deportation will be 

eliminated for purposes of any future application for admission.

Example

An alien had accrued ten (10) years of unlawful presence in the United States, and is subsequently 

granted cancellation of removal. The alien is now an LPR. If, after becoming an LPR, the alien travels 

abroad and returns to the United States through a port of entry, none of the pre-grant unlawful presence 

will be considered in determining the alien’s admissibility. Section 212(a)(9)(B)(i) of the Act does not 

apply to LPRs. 

(E) Lawful Nonimmigrants
The period of authorized stay for a nonimmigrant may end on a specific date or may continue for

“duration of status (D/S).” Under current USCIS policy, nonimmigrants begin to accrue unlawful presence

as follows: 

(i) Nonimmigrants Admitted until a Specific Date (Date Certain)

Nonimmigrants admitted until a specific date will generally begin to accrue unlawful presence the day

following the date the authorized period of admission expires, as noted on Form I-94 , Arrival/Departure

Record.

If USCIS finds, during the adjudication of a request for immigration benefit, that the alien has violated his 

or her nonimmigrant status, unlawful presence will begin to accrue either the day after Form I-94 expires 

or the day after USCIS denies the request, whichever is earlier.

If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation 

or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or 

the day after the Form I-94 expired, whichever is earlier.

It must be emphasized that the accrual of unlawful presence neither begins on the date that a status

violation occurs, nor on the day on which removal proceedings are initiated. Removal proceedings have no

impact on whether an individual is accruing unlawful presence. See 8 CFR 239.3 . 

Example:

An individual is admitted in H-1B status until September 20, 2007, as evidenced on Form I-94, 

Arrival/Departure Record. On January 1, 2007, an NTA is issued and the individual is placed in removal 

proceedings. The individual will not start to accrue unlawful presence unless the immigration judge 

holds that the alien had violated his or her nonimmigrant status, or until his or her Form I-94 expires, 

whichever is earlier. 

(ii) Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation

while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the

day after the request is denied. If an immigration judge makes a determination of nonimmigrant status

violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day

after the immigration judge's order. It must be emphasized that the accrual of unlawful presence neither

begins on the date that a status violation occurs, nor on the day on which removal proceedings are

initiated. See 8 CFR 239.3.

(iii) Non-Controlled Nonimmigrants (for example, Canadian B-1/B-2)

Nonimmigrants, who are not issued a Form I-94, Arrival/Departure Record, are treated as nonimmigrants 

admitted for D/S S (as addressed in Chapter 40.9.2(b)(1)(E)(ii)) for purposes of determining unlawful 

presence.
(F) Other Types of Lawful Status

(i) Aliens in Refugee Status

In general, the period of authorized stay begins on the date the alien is admitted to the United States in 

refugee status. If refugee status is terminated, unlawful presence will start to accrue the day after the 

refugee status is terminated.

If the individual is a derivative refugee, either by accompanying or by following to join the principal, the 

alien will commence to accrue unlawful presence as follows:

· If the derivative refugee is outside the United States: The period of stay authorized begins on the date 

the alien either enters as an accompanying or following-to-join refugee pursuant to section 207(c)(2) of 

the Act and 8 CFR 207.7 .

· If the derivative refugee is inside the United States: The accrual of unlawful presence ceases when 

USCIS accepts the filing of a bona fide Form I-730 , Asylee/Refugee Relative Petition, on the individual’s 

behalf. USCIS interprets the language of section 212(a)(9)(B)(iii)(II) of the Act to apply to refugees and 

asylees alike.

Therefore, once the bona fide Form I-730 petition is filed on behalf of the individual, the individual will 

be protected from the accrual of unlawful presence.

No period of time during which the bona fide petition is pending shall be taken into account in 

determining the period of unlawful presence. If the petition is subsequently denied, the individual will 

again begin to accrue unlawful presence, if the individual has previously accrued unlawful presence.

· Because filing a Form I-730 stops the accrual of unlawful presence, but does not cure any unlawful 

presence that has already accrued, an individual who departs the United States during the pendency of the 

petition, with or without advance parole, will trigger the 3-year or the 10-year bar.

In this case and because an individual seeking refugee status has to be admissible as an immigrant pursuant 

to section 207 of the Act, the individual will be required to file Form I-602, Application by Refugee For 

Waiver of Grounds of Excludability, to overcome the bars to admissibility before the Asylee/Refugee 

Relative Petition can be approved.

If the alien is not permitted to reenter the United States, the individual will have to seek the waiver through 

the U.S. consulate where the approved I-730 is processed .

(ii) Aliens Granted Asylum
The period of authorized stay begins on the date the alien files a bona fide application for 

asylum. See section 212(a)(9)(B)(iii)(II) of the Act; see also AFM Chapter 40.9.2(b)(2)(B) of this chapter.

This includes aliens, who entered the United States illegally but who were subsequently granted asylum. If 

asylum status is terminated, unlawful presence starts to accrue the day after the date of termination. A grant 

of asylum does not eliminate any prior periods of unlawful presence.

An individual who is included in the principal’s asylum application, Form I-589 , as a derivative beneficiary 

is in a period of stay authorized as of the date the principal applicant is in a period of stay authorized 

(unless he or she works without authorization or it is deemed that the application for the derivative 

individual is not bona fide).

However, if it is determined that the asylum application is not bona fide for reasons other than the ones to 

be attributed to the derivative beneficiary, the individual is in a period of stay authorized until the 

determination is made that the application by the principal was not bona fide.

Also, if the principal works without authorization, the derivative beneficiary only commences to accrue 

unlawful presence at the time the determination is made that the principal had worked without 

authorization.

Finally, a derivative beneficiary, who is physically present in the United States, but who was not included 

on the asylum application, is protected from the accrual of unlawful presence once the qualifying asylee 

files an Asylee/Refugee Relative Petition on behalf of the individual.

DHS interprets the language of section 212(a)(9)(B)(iii)(II) of the Act to apply to all applicants for 

asylum, including derivative beneficiaries, who obtain their status through an Asylee/Refugee Relative 

Petition.

(iii) Aliens Granted Temporary Protected Status (TPS) pursuant to Section 244 of the Act

If an alien’s TPS application has been granted, the alien is deemed to be in lawful nonimmigrant status for 

the duration of the grant. See section 244(f) of the Act; also s ee AFM Chapter 40.9.2(b)(3)(G) for the 

effect of a violation of TPS status on the accrual of unlawful presence, and for the effect of a pending TPS 

application on the accrual of unlawful presence.

If an alien is granted TPS, he or she is, while the grant is in effect, deemed to be in lawful nonimmigrant 

status for purposes of adjustment of status and change of status according to section 244(f) of the Act.

A grant of TPS does not, however, cure any unlawful presence that may have accrued before the grant of 

TPS. If the alien was present without inspection and admission or parole, the alien remains an alien who 

has not been inspected and admitted or paroled, despite the grant of TPS. See INS General Counsel Opinion, 

91-27, March 4, 1991.
Therefore, if before TPS is granted, the applicant had previously accrued unlawful presence sufficient to 

trigger the bars, and the applicant travels outside the United States after having obtained advance parole, his 

or her departure triggers the bars for purposes of an adjustment of change of status application; that is, the 

individual may be ineligible to adjust despite the wording of section 244(f) of the Act, and depending on 

the basis upon which the alien seeks adjustment.

Also, if a waiver was granted for inadmissibility under section 212(a)(9)(B) or (C) of the Act for purposes 

of the TPS application, the alien is still inadmissible for purposes of adjustment of status because the 

standard of the waiver granted for TPS status is different than the one granted in relation to an immigrant 

benefits application (although both are filed on Form I-601 , Application for Waiver of Grounds of 

Inadmissibility).

(G) Aliens Present as Parolees . 

Section 212(a)(9)(B)(ii) of the Act makes clear that an alien, who has been paroled, does not accrue 

unlawful presence as long as the parole lasts.

For purposes of the accrual of unlawful presence, the specific type of parole and the reasons for the grant of 

parole do not matter; however, conditional parole pursuant to section 236 of the Act cannot be considered 

parole for purposes of section 212(a)(9)(B)(ii) of the Act. See AFM chapter 40.9.1(a)(3)(D).

An alien, who has been paroled into the United States does, however, begin to accrue unlawful presence as 

follows: 

When a parolee remains in the United States beyond the period of parole authorization, unlawful presence 

begins to accrue the day following the expiration of the parole authorization.

Example:

The alien’s parole expires January 1, 2007, and the alien does not depart. January 2, 2007 will be the 

alien’s first day of unlawful presence. 

If the parole authorization is revoked or terminated prior to its expiration date, unlawful presence begins to 

accrue the day after the revocation or termination.

An alien paroled for the purpose of removal proceedings will begin to accrue unlawful presence the day 

after the date the removal order becomes administratively final, or unless the alien is otherwise protected 

from the accrual of unlawful presence.
(2) Aliens Present in Unlawful Status Who Do not Accrue Unlawful Presence by Statute for Purposes of 

Section 212(a)(9)(B) of the Act (Statutory Exceptions)

As noted in AFM Chapter 40.9.2(a)(2) , an alien must be in the United States in an unlawful status in 

order to accrue unlawful presence; however, there are some situations in which unlawful presence does not 

accrue despite unlawful status.

The alien may be protected from accruing unlawful presence by section 212(a)(9)(B) of the Act itself, or 

by USCIS policy. AFM Chapter 40.9.2(b)(2) deals with individuals, who are actually in unlawful status but 

who, by statute, do not accrue unlawful presence for purposes of section 212(a)(9)(B) of the Act.

The exceptions listed in AFM Chapter 40.9.2(b)(2) apply only to grounds of inadmissibility listed in section 

212(a)(9)(B) of the Act, and do not apply for purposes of inadmissibility under section 212(a)(9)(C) of the 

Act.

There are two reasons for this conclusion:

· The terms of sections 212(a)(9)(B)(iii) and (iv) of the Act refer only to specific subsections of section 

212(a)(9)(B)(i) of the Act; and

· Inadmissibility under section 212(a)(9)(C)(i)(I) of the Act rests on a more serious immigration 

violation than simple unlawful presence: To be inadmissible under section 212(a)(9)(C)(i)(I) of the Act, 

the alien must not only have accrued sufficient unlawful presence but also returned or attempted to return 

to the United States without admission.

Since the precise language of sections 212(a)(9)(B)(iii) and (iv) of the Act clearly make them apply only to 

inadmissibility under section 212(a)(9)(B) of the Act and not to inadmissibility under section 

212(a)(9)(C)(i)(I) of the Act, and because violations of section 212(a)(9)(C)(i)(I) of the Act are more 

culpable than mere unlawful presence, USCIS has concluded that these statutory exceptions do not apply to 

section 212(a)(9)(C)(i)(I) cases. See June 17, 1997, Office of Programs memorandum – Additional Guidance for 

Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act (Act) ; see also AFM Chapter 

40.9.2(b)(3) below for the same remark.

(A) Minors Who Are under 18 Years of Age

An alien whose unlawful status begins before his or her 18th birthday does not begin to accrue unlawful 

presence for purposes of section 212(a)(9)(B) of the Act until the day after his or her 18th birthday 

pursuant to section 212(a)(9)(B)(iii)(I) of the Act.

(B) Aliens with Pending Asylum Applications (Including Children Aging Out and Dependents of Asylum 

Applicants)
(i) Principal Applicant

An alien, whose bona fide application for asylum is pending, is in an authorized period of stay and does 

not accrue unlawful presence for purposes of section 212(a)(9)(B) of the Act unless the alien is employed 

without authorization while the application is pending. See section 212(a)(9)(B)(iii)(II) of the Act. It does 

not matter whether the application is or was filed affirmatively or defensively.

DHS has interpreted the phrase “bona fide asylum application” to mean a properly filed asylum application 

that has a reasonably arguable basis in fact or law, and is not frivolous. If this is the case, unlawful presence 

does not accrue while the application is pending unless the alien engages in unauthorized employment. 

DHS considers the application for asylum to be pending during any administrative or judicial review 

(including review in Federal court).

A denial of an asylum claim is not determinative of whether the claim was bona fide for purposes of section 

212(a)(9)(B)(iii)(II) of the Act. Similarly, the abandonment of an application for asylum does not mean 

that the application was not bona fide.

The Asylum Division within the Refugee, Asylum, and International Operations Directorate at USCIS HQ 

can provide guidance regarding whether a filing of an asylum application can be deemed “bona fide” based 

on the specific facts of the case and should be contacted, if there are any questions as to the determination.

(ii) Dependents in General

An individual who is included in the principal’s asylum application (Form I-589) as a derivative beneficiary 

is in a period of stay authorized as of the date the principal applicant is in a period of stay authorized 

(unless he or she works without authorization or it is deemed that the application for the derivative 

individual is not bona fide).

However, if it is determined that the asylum application is not bona fide for reasons other than the ones to 

be attributed to the dependent, the individual is in a period of stay authorized, for example until the 

determination is made that the application was not bona fide.

Also, if the principal works without authorization, the derivative beneficiary only commences to accrue 

unlawful presence at the time the determination is made that the principal had worked without 

authorization.

A dependent’s asylum case is no longer considered pending if the principal asylum applicant notifies USCIS 

that the dependent is no longer part of the principal’s application, or if USCIS determines that the 

dependent relationship no longer exists (for example because of divorce, or if the individual is no longer 

considered a “child”).
In such cases, USCIS will remove the individual from the pending asylum application; the individual must 

file his or her own asylum application as a principal applicant within a reasonable amount of time.

The individual will commence to accrue unlawful presence from the time USCIS has removed the 

dependent from the principal’s application. Individuals, who do file a bona fide application within a 

reasonable period of time, will be deemed to have a pending application and they do not accrue unlawful 

presence from the time the new bona fide application is pending.

Finally, a derivative beneficiary, who is physically present in the United States but who was not included on 

the asylum application, is in a period of stay authorized at the time the qualifying asylee files an 

Asylee/Refugee Relative Petition on behalf of the individual. DHS interprets the language of section 

212(a)(9)(B)(iii)(II) of the Act to apply to all applicants for asylum, including derivative beneficiaries 

who obtain their status through an Asylee/Refugee Relative petition.

Adjudicators should keep in mind that if the principal asylum applicant’s dependent is not yet 18 years old, 

then the dependent will be protected from accrual of unlawful presence under section 

212(a)(9)(B)(iii)(I) of the Act.

(iii) Children Who Age Out and The Child Status Protection Act (CSPA)

The CSPA amended section 208(b)(3)(B) of the Act to allow continued classification as a child for an 

unmarried son or daughter, who was under 21 years of age on the date the parent filed for asylum, 

provided that the son or daughter turned 21 years of age while the application remained pending.

Therefore, if the requirements of the CSPA are met (the alien is present in the United States, named in the 

asylum application of his or her parent, and the application was pending on or after August 6, 2002) the 

individual may continue to be classified as a “child” and can be considered to have a pending application. 

Thus, unlawful presence does not accrue in such cases.

Example: 

Form I-589, Application for Asylum and for Withholding of Removal, was filed on February 7, 2000, 

listing a 20-year old derivative son in the United States. The son turned 21 on October 1, 2000. The 

application remained pending through August 6, 2002, and continues to be pending. For purposes of 

the asylum application, the son continues to be a “child” because the application was filed prior to his 

21 st birthday. The son will not start to accrue unlawful presence until and unless the application is 

denied. 

(C) Aliens Physically Present in the United States with pending Forms I-730

Accrual of unlawful presence stops upon the filing of a bona fide Form I-730 , Asylee/Refugee Relative 

Petition. USCIS interprets the language of section 212(a)(9)(B)(iii)(II) of the Act to apply to refugees and 
asylees alike. Therefore, once the bona fide petition is properly filed on behalf of the individual, the 

individual will no longer accrue unlawful presence.

If the alien was already accruing unlawful presence when the Form I-730 was filed, and the Form I-730 is 

subsequently denied, the individual will again begin to accrue unlawful presence on the day after the denial 

of the petition.

If, at the time of the filing of the Form I-730, the alien was protected from the accrual of unlawful presence 

(for example, was in lawful status or had another application pending), but the other basis for protection 

expired while the Form I-730 was pending, then the alien will begin to accrue unlawful presence on the 

day after the denial of the Form I-730.

No period during which the bona fide Form I-730 was pending will be counted in determining the accrual 

of unlawful presence. Since the filing of a Form I-730 does not cure any unlawful presence that has already 

accrued, if the individual departs during the pendency of the petition, the individual will trigger the 3-year 

and the 10-year bar, if, prior to the filing of the petition, the individual has already accrued sufficient 

unlawful presence.

Because a refugee has to be admissible as an immigrant pursuant to section 207 of the Act, the individual, 

upon his return to the United States, will be required to file Form I-602 , Application By Refugee For 

Wavier of Grounds of Excludability, to overcome the bars to admissibility before Form I-730 can be 

granted to confer derivative refugee status. If the alien departs without advance parole, the individual will 

have to seek the waiver through the U.S. consulate where the approved Asylee/Refugee Relative Petition 

will be processed.

(D) Beneficiary of Family Unity Protection (FUP) Granted pursuant to Section 301 of the Immigration Act 

of 1990; 8 CFR 236.15

No period of time in which an alien is a beneficiary of FUP shall be taken into account in determining the 

period of unlawful presence in the United States, for purposes of section 212(a)(9)(B) of the Act. If the 

FUP application ( Form I-817 ) is approved, the accrual of unlawful presence will be deemed to have 

stopped as of the date of the filing of Form I-817, Application for Family Unity Benefits, and will continue 

through the period the alien retains FUP protection. The grant of FUP protection does not, however, erase 

prior unlawful presence.

The filing of Form I-817, by itself, does not stop the accrual of unlawful presence. If the Form I-817 is 

denied, the individual will continue to accrue unlawful presence as if no Form I-817 had been filed.

Section 212(a)(9)(B)(iii)(II) of the Act, by its terms, applies only to Family Unity Program benefits under 

section 301 of the Immigration Act of 1990. Congress provided similar benefits under section 1504 of the 

LIFE Act Amendments of 2000. As a matter of policy, US CIS treats section 1504 FUP cases the same as 
section 301 FUP cases, for purposes of the accrual of unlawful presence. See AFM chapter 

40.9.2(b)(3)(F) .

(E) Certain Battered Spouses, Parents, and Children

An approved Violence Against Women Act of 1994 (VAWA) self-petitioner and his or her child(ren) can 

claim an exception from inadmissibility under section 212(a)(9)(B)(i) of the Act, if he or she can 

establish a substantial connection between the abuse suffered, the unlawful presence, and his or her 

departure from the United States.

He or she may claim this exception by submitting evidence of such substantial connection with his or her 

adjustment application. If the exception is granted, the individual is deemed to not be inadmissible under 

section 212(a)(9)(B)(i) of the Act for purposes of future immigration benefits. This exception does not 

apply to inadmissibility under section 212(a)(9)(C)(i) of the Act, which has its own VAWA waiver 

in section 212(a)(9)(C)(iii) of the Act.

(F) Victims of Severe Form of Trafficking in Persons

Section 212(a)(9)(B)(i) of the Act does not apply to certain victims of severe forms of 

trafficking. See section 212(a)(9)(B)(iii)(V) of the Act.

Similar to the battered spouses, a victim of a severe form of trafficking in persons may claim an exception 

to inadmissibility under section 212(a)(9)(B)(i) of the Act, if he or she can demonstrate that the severe 

form of trafficking (as that term is defined in section 7102 of Title 22 U.S.C.) was at least one central 

reason for the alien’s unlawful presence in the United States.

An individual can claim the exception by submitting evidence of the central reason with Form I-914 , 

Application for T Nonimmigrant Status, or, at the time of the adjustment, when filing Form I-485 , 

Application to Register Permanent Residence or Adjust Status. See 8 CFR 214.11 ; 8 CFR 245.23 . If the 

exception is granted by USCIS, the individual will be deemed to have never accrued any unlawful presence 

for purposes of the current nonimmigrant benefits application or any future benefits application.

If the exception is not granted, the individual may apply for a discretionary waiver of the ground of 

inadmissibility. If seeking T nonimmigrant status, the alien would apply under section 

212(d)(3)(A) or 212(d)(13) of the Act by filing Form I-192 , Advance Permission to Enter as 

Nonimmigrant. See 8 CFR 212.16 . If the alien is already a T nonimmigrant, and is seeking adjustment of 

status, the alien would file Form I-601, Application for Waiver Grounds of Inadmissibility. See 8 CFR 

212.18 .

(G) Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status 

(COS)(“Tolling”)

Pursuant to section 212(a)(9)(B)(iv) of the Act, a nonimmigrant, who has filed a timely request for 
extension of nonimmigrant status (EOS) or change of nonimmigrant status (COS), is protected from 

accruing unlawful presence during the pendency of the application for up to 120 days (the accrual of 

unlawful presence is “tolled”). Section 212(a)(9)(B)(iv) of the Act is only applicable to the three-year bar 

of section 212(a)(9)(B)(i)(I) of the Act, and is also referred to as the “tolling-provision.” However, 

unlawful presence for purposes of the 3-year bar will only be tolled, if:

· the alien has been lawfully admitted or paroled into the United States, and

· the application for EOS or COS is timely filed, and not frivolous, and

· the alien does not engage and/or has not been engaging in unauthorized employment. See section 

212(a)(9)(B)(iv) of the Act.

By policy, USCIS has extended the 120-day statutory tolling period to cover the entire period during which 

an application for EOS or COS is pending; this extension is valid for the 3-year and the 10-year bars.

For a more detailed description of this extension and guidance concerning whether unlawful presence 

accrues after the 120-day period specified by the statute. See AFM Chapter 40.9.2(b)(3)(C) .

(3) Aliens Present in Unlawful Status Who Do not Accrue Unlawful Presence by Virtue of USCIS Policy for 

Purposes of Sections 212(a)(9)(B) and (C)(i)(I) of the Act

As noted in AFM Chapter 40.9.2(a)(2) , there are some circumstances in which an alien whose status is 

actually unlawful is, nevertheless, protected from the accrual of unlawful presence.

As a matter of policy, USCIS has determined that an alien whose status is actually unlawful does not accrue 

unlawful presence in the situations described in this subsection.

These exceptions are based on policy, unlike the statutory exceptions listed in sections 

212(a)(9)(B)(iii) and (iv) of the Act that were discussed in AFM Chapter 40.9.2(b)(2) . It is USCIS’ 

policy that these exceptions apply to unlawful presence accrued for purposes of sections 

212(a)(9)(B) and (C)(i)(I) of the Act unless otherwise noted in this section.

(A) Aliens with Properly Filed Pending Applications for Adjustment of Status or Registry ( Sections 

209 , 245 , and 245(i) of the Act, sections 202 of P ublic Law 99-603 (Cuban-Haitian Adjustment), 

section 202(b) of NACARA, section 902 of HRIFA, and aliens with properly filed, pending Registry 

applications under section 249 of the Act)

Accrual of unlawful presence stops on the date the application is properly filed pursuant to 8 CFR 103 and 

the regulatory filing requirements governing the particular type of benefit sought.

Note that, if the application is properly filed according to the regulatory requirements, the applicant will 
not accrue unlawful presence, even if it is ultimately determined that the applicant was not eligible for the 

benefit in the first place. The accrual of unlawful presence is tolled until the application is denied.

Example:

An alien, who has been unlawfully in the United States for 90 days, and who had worked without 

authorization during the 90 days, applies for adjustment of status based on an approved Form I-130, 

Petition for Alien Relative. 

The application for adjustment of status is properly filed, that is, the application is fully executed, signed, 

and the applicant pays the proper fee. See 8 CFR 103.2(a)(7) . Also, with the application package, the 

alien provides a copy of Form I-797 , Notice of Approval for the Alien Relative Petition, and a copy of 

the newest Visa Bulletin, demonstrating that a visa number is immediately available in his or her 

preference category. See 8 CFR 245.2 . 

Therefore, USCIS accepts the application and stamps it as received and properly filed as of January 1, 

2007. What is not readily apparent from the initial review of the application is that the alien had 

previously worked without authorization, and therefore, he or she is not eligible to apply for adjustment 

of status pursuant to section 245(c) of the Act. 

However, because the application was accepted by USCIS as (technically) properly filed, the applicant is 

now in authorized stay and does not accrue any unlawful presence during the pendency of the properly 

filed application for adjustment of status. 

At the time of the interview, on April 1, 2007, the applicant’s adjustment of status application is denied 

based on section 245(c) of the Act, for having been employed without authorization. 

On April 2, 2007, the alien’s accrual of unlawful presence resumes because he or she no longer has a 

pending application for adjustment of status. The alien departs the United States on May 1, 2007, after 

having secured an immigrant visa interview at the US Embassy/consular section in his or her home

country. 

In assessing the alien’s inadmissibility under section 212(a)(9) of the Act, the consular officer will 

count the alien’s 90 days of unlawful presence that accrued prior to the filing of the adjustment of status 

application, and the 30 days of unlawful presence that accrued after the adjustment of status application 

was denied. 

However, the consular officer will not count the time period during which the adjustment of 

status application was pending because the individual was in a period of stay authorized and did not 

accrue unlawful presence during the pendency of the adjustment application. 

In total, the alien had accrued 120 days of unlawful presence in the United States; the alien is not 

i nadmissible under section 212(a)(9)(B) of the Act.

Except in the case of a NACARA or HRIFA application, the application must have been filed affirmatively 

(with USCIS) rather than defensively (before the immigration judge as a form of relief from removal) for it 

to toll the accrual of unlawful presence; that is, an alien, who files an application for adjustment of status 
after being served with a Notice to Appear (NTA) in removal proceedings, is not protected from the accrual 

of unlawful presence.

Accrual of unlawful presence resumes the day after the application is denied. However, if the application 

that was filed with USCIS is denied, and the alien has a legal basis upon which to renew the application in 

proceedings before an immigration judge, the protection against the accrual of unlawful presence will 

continue through the administrative appeal. See for example for adjustment of status applications 

under section 245 of the Act: 8 CFR 245.2(a)(5)(ii) and 8 CFR 1245.2(a)(5)(ii) .

(B) Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status 

(COS)(“Tolling”)

As noted in AFM chapter 40.9.2(b)(2)(G) , by statute, an alien does not accrue unlawful presence for up 

to 120 days while a non-frivolous EOS or COS application is pending, provided that the alien does not 

work and/or has not worked unlawfully. This is referred to as “tolling:” while the application is pending 

after having been properly filed, the alien will not accrue unlawful presence. The above described statutory 

exception applies to section 212(a)(9)(B)(i)(I) of the Act; it does not apply to 

section 212(a)(9)(B)(i)(II) or (C)(i)(I) of the Act.

However, according to USCIS policy, an alien does not accrue unlawful presence (the accrual of unlawful 

presence is tolled), and is considered in a period of stay authorized for purposes of sections 

212(a)(9)(B)(i)(I), (B)(i)(II), and (C)(i)(I) of the Act during the entire period a properly filed EOS or 

COS application is pending, if the EOS or COS application meets the following requirements:

· the non-frivolous request for EOS or COS was filed timely. To be considered timely, the application 

must have been filed with USCIS, i.e. be physically received (unless specified otherwise, such as mailing or 

posting date) before the previously authorized stay expired. See 8 CFR 103.2(a)(7) ; 8 CFR 214.1(c)(4) ; 8 

CFR 248.1(b) . An untimely request may be excused in USCIS’ discretion pursuant to 8 CFR 214.1(c)(4) 

and 8 CFR 248.1(b); and

· the alien did not work without authorization before the application for EOS or COS was filed or while 

the application is pending; and

· the alien has not failed to maintain his or her status prior to the filing of the request for EOS or COS.

If these requirements are met, the period of authorized stay covers the 120-day tolling period described 

in section 212(a)(9)(B)(iv) of the Act and extends to the date a decision is issued on the request for EOS 

or COS.

A request for EOS or COS may be filed on Form I-539 , Application to Extend/Change Nonimmigrant 

Status, or may be included in the filing of Form I-129 , Petition for a Nonimmigrant Worker. 

S ee Section AFM chapter 40.9.2(b)(2)(G) for a detailed description of the statutory tolling provision 
under section 212(a)(9)(B)(iv) of the Act, covering only inadmissibility under section 212(a)(9)(B)(i)(I) 

of the Act .

(C) Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status (COS) Who 

Depart the United States During the Pendency

Departure from the United States while a request for EOS or COS is pending, does not subject an alien to 

the 3-year, 10-year, or permanent bar, if he or she departs after the expiration of Form I-94 , 

Arrival/Departure Record unless the application was frivolous, untimely, or the individual had worked 

without authorization.

D/S nonimmigrants, who depart the United States while an application for COS or EOS is pending, 

generally do not trigger the 3-year, 10-year, or permanent bar under sections 

212(a)(9)(B)(i) or 212(a)(9)(C)(i)(I) of the Act.

· Evidentiary Considerations

If the applicant subsequently applies for a nonimmigrant visa abroad, the individual has to establish to the 

satisfaction of the consular officer that the application was timely filed and not frivolous.

The requirement that the application was timely may be established through the submission of evidence of 

the date the previously authorized stay expired, together with a copy of a dated filing receipt, a canceled 

check payable to USCIS for the EOS or COS application, or other credible evidence of a timely filing.

· Determination by a Consular Officer that the Application Was Non-Frivolous

To be considered non-frivolous, the application must have an arguable basis in law and fact, and must not 

have been filed for an improper purpose (such as to prolong one’s stay to pursue activities inconsistent 

with one’s status).

In determining whether an EOS or COS application was non-frivolous, DOS has instructed consular posts 

that it is not necessary to make a determination that USCIS would have ultimately ruled in favor of the 

alien. See 9 Foreign Affairs Manual ( FAM ) 40.92 Notes, Note 5c.

(D) Nonimmigrants - Effect of a Decision on the Request for Extension of Status (EOS) or Change of Status 

(COS) on Unlawful Presence

The following information pertains to applications requesting EOS or COS, or petitions that include 

requests for EOS or COS.

(i) Approved Requests
If a request for EOS or COS is approved, the alien will be granted a new period of authorized stay, 

retroactive to the date the previous period of authorized stay expired. This applies to aliens admitted until a 

specific date and aliens admitted for D/S.

(ii) Denials Based on Frivolous Filings or Unauthorized Employment

If a request for EOS or COS is denied because it was frivolous or because the alien engaged in 

unauthorized employment, any and all time after the expiration date marked on

Form I-94, Arrival/Departure Record, will be considered unlawful presence time, if the alien 

was admitted until a specific date. However, if the alien was admitted for D/S, unlawful 

presence begins to accrue on the date the request is denied.

(iii) Denials of Untimely Applications

If a request for EOS or COS is denied because it was not timely filed, unlawful presence begins to accrue 

on the date Form I-94 expired. If, however, the alien was admitted for D/S, unlawful presence begins to 

accrue the day after the request is denied.

(iv) Denials for Cause of Timely Filed, Non-Frivolous Applications for EOS or COS

If a timely filed, non-frivolous request for EOS or COS is denied for cause, unlawful presence begins to 

accrue the day after the request is denied.

(v) Motion to Reopen/Reconsider

The filing of a motion to reopen or reconsider does not stop the accrual of unlawful presence. See 8 CFR 

103.5(a)(iv) (Effect of motion or subsequent application or petition).

However, if the motion is successful and the benefit granted, the grant is effective retroactively. The alien 

will be deemed to not have accrued unlawful presence.

If DHS reopens proceedings, but ultimately denies the petition or application again, the petition or 

application will be considered to have been pending since the initial filing date.

Thus, unlawful presence will accrue as specified in AFM Chapters 

40.9.2(b)(3)(D)(ii) , (iii) or (iv) above. In the case of a timely, non-frivolous application, unlawful 
presence will accrue from the date of the last denial of the petition or application, not from the earlier, 

reopened decision.

(vi) Appeal to the Administrative Appeals Office (AAO) of the Underlying Petition Upon Which an EOS or 

COS Is Based

If an individual applies for an EOS or COS as part of a Form I-129 , Petition for Nonimmigrant Worker, the 

adjudicator has to adjudicate two requests: The petition seeking a particular classification, and the request 

for an EOS or COS.

The denial of an EOS or COS cannot be appealed. See 8 CFR 214.1(c)(5) and 8 CFR 248.3(g) .

However, the denial of the underlying petition for the status classification can, in general, be appealed. The 

filing of an appeal to the AAO for the denial of the underlying petition, however, has no influence on the 

accrual of unlawful presence.

Unlawful presence starts to accrue on the day of the denial of the request for EOS or COS regardless of 

whether the applicant or the petitioner appeals the denial of the petition to the AAO.

However, if the denial of the underlying petition is reversed on appeal, and the EOS or COS subsequently 

granted, the individual is not deemed to have accrued any unlawful presence between the denial of the 

petition and request for EOS or COS, and the subsequent grant of the EOS or COS.

(vii) Nonimmigrants - Multiple Requests for EOS Or COS (“Bridge Filings”) and Its Effect on Unlawful 

Presence

The terms “authorized status” (authorized period of admission or lawful status) and “period of stay 

authorized by the Secretary of Homeland Security” are not interchangeable. They do not carry the same 

legal implications. See AFM Chapter 40.9.2(a)(2) . An alien may be in a period of stay authorized by the 

Secretary of Homeland Security but not in an authorized status.

An alien whose authorized status expires while a timely filed request for EOS or COS is pending, is in a 

period of stay authorized by the Secretary of Homeland Security. The alien does not accrue unlawful 

presence as long as the timely filed request is pending.

However, the filing of a request for EOS or COS does not put an individual into valid and authorized 

nonimmigrant status, i.e. he or she is not in authorized status. Therefore, if an individual has filed an initial 

application for EOS or COS and subsequently files additional (untimely) requests for EOS or COS, the 

subsequently filed request will not stop the individual from accruing unlawful presence, if the initial 

request is denied.
(E) Aliens with Pending Legalization Applications, Special Agricultural Worker (SAW) Applications, and 

LIFE Legalization Applications

An alien who properly filed an application under section 245A of the Act (including an applicant for 

Legalization under any Legalization-related Class Settlement Agreements), section 210 of the Act, or section 

1104 of the LIFE Act, is in a period of authorized stay as long as the application remains pending. Accrual 

of unlawful presence stops on the date the application is filed and resumes the day after the application is 

denied.

However, if the denial is appealed, the period of authorized stay continues through the administrative 

appeals process. Denied applications cannot be renewed before an immigration judge. Therefore, the 

period of authorized stay does not continue through removal proceedings or while a petition for review is 

pending in Federal court.

(F) Aliens granted Family Unity Program Benefits under section 1504 of the LIFE Act Amendments of 2000

Section 212(a)(9)(B)(iii)(III) of the Act, by its terms, applies only to Family Unity Program (FUP) 

benefits under section 301 of the Immigration Act of 1990 . Congress provided similar benefits under 

section 1504 of the LIFE Act Amendments of 2000. As a matter of policy, USCIS treats section 1504 FUP 

cases the same as section 301 FUP cases, for purposes of the accrual of unlawful presence.

As with section 301 FUP cases, if the Form I-817 is approved, then the alien will be deemed not to accrue 

unlawful presence from the Form I-817 filing date throughout the period of the FUP grant.

A grant of FUP benefits under section 1504 does not, however, erase any unlawful presence accrued before 

the grant of FUP benefits under section 1504 of the LIFE Act Amendments of 2000.

Also, as with section 301 FUP cases, the filing of Form I-817 , by itself, does not stop the accrual of 

unlawful presence. If the Form I-817 is denied, the individual will continue to accrue unlawful presence as 

if no Form I-817 had been filed.

(G) Aliens with Pending Applications for Temporary Protected Status (TPS) pursuant to Section 244 of the 

Act

The period of authorized stay begins on the date a prima facie application for TPS is filed, provided the 

application is ultimately approved. If the application is approved, the period of authorized stay continues 

until TPS status is terminated.

If the application is denied, or if prima facie eligibility is not established, unlawful presence accrues as of 

the date the alien’s previous period of authorized stay expired. The application for TPS can be renewed in 

removal proceedings pursuant to 8 CFR 244.11 and 8 CFR 1244.11 , and the period of authorized stay 

continues through removal proceedings.
(H) Aliens Granted Voluntary Departure pursuant to Section 240B of the Act

Voluntary departure is a discretionary relief that allows certain favored aliens to leave the country willingly. 

Voluntary departure can either be granted by DHS, by the immigration judge, or the Board of Immigration 

Appeals (BIA). The length of the voluntary departure period that can be granted depends on the stages of 

proceedings the alien is in.

If the alien is not in removal proceedings, DHS can grant voluntary departure for up to 120 

days. See section 240B(a) and 8 CFR 240.25 . The denial of voluntary departure at this stage, cannot be 

appealed; however, the denial is without prejudice to the alien for a later application of voluntary departure 

in removal proceedings. See 8 CFR 240.25(e).

If the alien is in removal proceedings but these proceedings are not yet completed, or if the alien’s 

proceedings are at the conclusion, the immigration judge or the judge at the BIA, may grant voluntary 

departure. See section 240B(a) or (b) of the Act; 8 CFR 1240.26 . If the IJ denies voluntary departure, the 

denial can be appealed to the BIA . 8 CFR 1240.26(g) . The time period granted can be up to 120 days if 

granted prior to completion, or up to 60 days if granted at the conclusion of proceedings. See 8 CFR 

1240.26(e) . 

Under certain circumstances, the voluntary departure period can be extended, or voluntary departure 

reinstated. Voluntary departure is always granted in lieu of removal proceedings or a final order of removal. 

Therefore, if an alien timely departs according to the voluntary departure period, the alien is not subject to 

a final order of removal.

However, if the alien fails to depart, and there was an alternate order of removal, the alternate order will be 

become effective upon the alien’s failure to depart. See 8 CFR 1240.26(d) . 

On December 18, 2008, the Department of Justice amended the voluntary departure rule; the changes 

became effective on January 20, 2009 and apply prospectively only. 73 FR 76927 (December 18, 2008).

The new rules clarified the relationship between voluntary departure and the filing of a motion to 

reopen/reconsider or petition for review. It also clarified the impact of the failure to post bond on 

voluntary departure and the alternate order of removal.

General Rule for the Accrual of Unlawful Presence in Connection With A Grant of Voluntary 

Departure 

Accrual of unlawful presence stops on the date an alien is granted voluntary departure and resumes on 

the day after voluntary departure expires, if the alien has not departed the United States according to the 

terms of the grant of voluntary departure. 
(i) Voluntary Departure Granted by DHS pursuant to 8 CFR 240.25 (Including Extension of Voluntary 

Departure)

If DHS grants voluntary departure before initiation of removal proceedings, time spent in voluntary 

departure does not add to an alien’s unlawful presence. A grant of voluntary departure prior to the 

initiation of removal proceedings may not exceed 120 days. See section 240B(a)(2) of the Act. Pursuant 

to 8 CFR 240.25 , voluntary departure may be extended at the discretion of the Field Office Director, 

except that the total period allowed, including any extensions, may not exceed the 120-day limit. Courts 

may not extend voluntary departure but they may reinstate voluntary departure.

(ii) Voluntary Departure Granted Pursuant to Section 240B of the Act after the Initiation of Removal 

Proceedings

If a person is granted voluntary departure after commencement of removal proceedings, unlawful presence 

ceases to accrue with the grant, and resumes after the expiration of the voluntary departure period. 

Voluntary departure after the initiation of removal proceedings is governed by section 240B(b) of the Act 

and 8 CFR 1240.26 . 

If the immigration judge grants voluntary departure, the alien is not subject to the 3-year bar because of the 

wording of section 212(a)(9)(B)(i)(I) of the Act. However, the fact that proceedings commenced does 

not stop the accrual of unlawful presence time for purposes of the 10-year and the permanent bar. See 8 

CFR 239.3 . 

(iii) Reversal of a Denial of Voluntary Departure

If the denial of voluntary departure by the Immigration Judge is reversed on appeal by the BIA, the time 

from the denial to the reversal will be considered authorized stay in the United States

Remember

A denial of voluntary departure by USCIS cannot be appealed. 

(iv) Reinstatement of Voluntary Departure by the Board Of Immigration Appeals (BIA) or the Immigration 

Judge

An immigration judge or the BIA may reinstate voluntary departure in a removal proceeding that has been 

reopened for a purpose other than solely making an application for voluntary departure, and if reopening 

was granted prior to the expiration of the original period of voluntary departure. See 8 CFR 1240.26(h) . 
In no event can the reinstatement of voluntary departure result in a total period of time, including any 

reinstatement, exceeding the 60 or the 120 days of voluntary departure stated in section 240B of the Act.

If voluntary departure is reinstated by the BIA or by the immigration judge, the time from the expiration of 

the grant of voluntary departure to the grant of reinstatement is not considered authorized stay.

However, the time of the reinstated voluntary departure to the ending period of this voluntary departure, is 

considered authorized stay. Reinstatement of voluntary departure is regulated at 8 CFR 1240.26(h) .

(v) Effect of a Petition for Review

In a case involving a grant of voluntary departure before January 20, 2009, if a Federal court with 

jurisdiction to review the removal order stays the running of the voluntary departure period while the case 

is pending, the alien will continue to be considered to be under a grant of voluntary departure and will not 

accrue unlawful presence.

For any EOIR grant of voluntary departure on or after January 20, 2009, however, the filing of a petition 

for review terminates a grant of voluntary departure and makes the alternate removal order immediately 

effective. 8 CFR 1240.26(i) .

If the alien files a petition for review, therefore, the alien will no longer be protected from the accrual of 

unlawful presence based on the voluntary departure grant. If the alien remains in the United States while 

the petition is pending, the accrual of unlawful presence will begin the day after the petition for review is 

filed.

This regulation, however, gives the alien 30 days after filing the petition for review in order to leave the 

United States voluntarily. If the alien leaves within this 30-day period, the alien will continue to be 

protected from the accrual of unlawful presence up to the date of the alien’s actual departure.

(vi) Voluntary Departure and the Filing of A Motion to Reopen To the Board of Immigration Appeals (BIA)

A motion to reopen is a form of procedural relief that asks the BIA to change its decision in light of newly 

discovered evidence or a change in circumstances since the hearing. See Dada v. Mukasey , 128 S.Ct. 2307, 

2315 (2008). In general, a motion to reopen has to be filed within 90 days. See section 240(c)(7) of the 

Act.

Therefore, an alien granted voluntary departure for a period of up to 60 days is either faced with the choice 

of departing according to the voluntary departure order, or to make use of his or her statutory right to file 

the motion to reopen and to await the result of the adjudication of the motion.

In 2008, the Supreme Court addressed the issue and held that to safeguard the right to pursue a motion to 
reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally and 

without regards to the underlying merits of the motion to reopen, a voluntary departure request before 

expiration of the departure period. See Dada v. Mukasey , 128 S.Ct. 2307, 2320 (2008). As a result, the alien 

has the option either to abide by the terms and receive the agreed upon benefits of voluntary departure; or, 

alternatively, to forego those benefits and remain in the United States to pursue an administrative motion.

Therefore, if an alien was initially granted voluntary departure by the immigration judge or the Board of 

Immigration Appeals before January 20, 2009, but the alien later requests withdrawal of the voluntary 

departure order, the alien will commence to accrue unlawful presence at the time of the administratively 

final order of removal unless the alien is otherwise protected from the accrual of unlawful presence (such 

as the grant of a stay of removal by the BIA).

The motion to reopen does not toll voluntary departure. If the alien requests a withdrawal of the voluntary 

departure order, the alien will accrue unlawful presence as if voluntary departure had never been granted 

even if the request for withdrawal is made, for example, on the last day of the voluntary departure period.

The Dada decision does not apply, however, to any EOIR grant of voluntary departure that is made on or 

after January 20, 2009. Under 8 CFR 1240.26(b)(3)(iii) , filing a motion to reopen or reconsider during 

the voluntary departure period automatically terminates the grant of voluntary departure, and makes the 

alternative removal order effective immediately.

Thus, for a grant of voluntary departure on or after January 20, 2009, the alien will no longer be protected 

from the accrual of unlawful presence beginning the day after the date the alien files a motion to reopen or 

to reconsider.

(I) Aliens Granted Stay of Removal

A stay of removal is an administrative or judicial remedy of temporary relief from removal. The grant of a 

stay of removal can be automatic or discretionary. See sections 240(b)(5) and 241(c)(2) of the Act; 8 CFR 

241.6 , 8 CFR 1241.6 , 8 CFR 1003.6 , and 8 CFR 1003.23(b)(1)(v) . During a grant of stay of removal, 

DHS is prevented from executing any outstanding order of removal, deportation, or exclusion. Therefore, 

an alien granted stay of removal does not accrue unlawful presence during the period of the grant of stay of 

removal. A stay of removal does not erase any previously accrued unlawful presence.

If an individual is ordered removed in absentia pursuant to section 240(b)(5)(A) of the Act, and he or she 

challenges the order in a motion to rescind the in absentia order pursuant to section 240(b)(5)(C) of the 

Act, the alien’s removal order will be stayed automatically until the motion is decided. See section 

240(b)(5)(C) of the Act.

The order will be stayed through a possible appeal to the Board of Immigration Appeals (BIA) or Federal 

court. See Matter of Rivera-Claros , 21 I&N Dec. 232 (BIA 1996). For purposes of section 

212(a)(9)(B) and (C)(i)(I) of the Act, an individual, who filed a motion to rescind an in absentia order of 

removal pursuant to section 240(b)(5)(C) of the Act, will not accrue unlawful presence during the 

pendency of the motion, including any stages of appeal before the BIA or Federal court.
(J) Aliens Granted Deferred Action

A DHS field office director may, in his or her discretion, recommend deferral of (removal) action, an act of 

administrative choice in determining, as a matter of prosecutorial discretion, to give some cases lower 

enforcement priority. Deferred action is, in no way, an entitlement, and does not make the alien’s status 

lawful.

Deferred action simply recognizes that DHS has limited enforcement resources and that every attempt 

should be made administratively to utilize these resources in a manner which will achieve the greatest 

impact under the immigration laws. There is no specific authority for deferred action codified in law or 

regulation although certain types of benefits refer to a grant of deferred action. For more information on 

Deferred Action, see Detention and Removal Operations Policy and Procedure Manual (DROPPM), Chapter 

20.8.

Accrual of unlawful presence stops on the date an alien is granted deferred action and resumes the day after 

deferred action is terminated. The granting of deferred action does not eliminate any prior periods of 

unlawful presence.

(K) Aliens Granted Withholding of Removal under Section 241(b)(3) of the Act or Deportation under 

Former Section 243 of the Act

Accrual of unlawful presence stops on the date that withholding is granted and continuous through the 

period of the grant.

(L) Aliens Granted Withholding of Removal or Deferral of Removal under the United Nations Convention 

Against Torture Pursuant to 8 CFR 208.16 and 8 CFR 208.17

Accrual of unlawful presence stops on the date that withholding or deferral is granted and continuous 

through the period of the grant.

(M) Aliens Granted Deferred Enforced Departure (DED)

The period of authorized stay begins on the date specified in the Executive Order or other Presidential 

directive and ends when DED is no longer in effect.

(N) Aliens Granted Satisfactory Departure under 8 CFR 217.3

Under 8 CFR 217.3(a) , a Visa Waiver Program (VWP) alien, who obtains a grant of satisfactory departure 

from U.S. Immigration and Customs Enforcement, and who leaves during the satisfactory departure period, 

is deemed to not have violated his or her VWP admission. Thus, unlawful presence will not accrue during 

the satisfactory departure period, if the alien departs as required.
If the alien remains in the United States after the expiration of the grant of satisfactory departure, unlawful 

presence will begin to accrue the day after the satisfactory departure period expires unless some other 

provision or policy determination protects the person from accrual of unlawful presence. See section (b) of 

this AFM chapter.

(4) Effect of the Protection from the Accrual of Unlawful Presence on Previously Accrued Unlawful 

Presence: Protection from the Accrual of Unlawful Presence Does Not Cure Previously Accrued Unlawful 

Presence

Unless stated otherwise, protection from the accrual of unlawful presence under any section of 

this AFM chapter does not cure any unlawful presence that the alien may have already accrued before the 

alien came to be protected.

Example:

An alien accrues 181 days of unlawful presence. He or she then applies for adjustment of status. 

Although the alien had accrued 181 days of unlawful presence before he or she applied for adjustment of 

status, the alien stops to accrue unlawful presence once the adjustment of status application is properly 

filed. 

However, the already accrued unlawful presence of 181 days continues to apply to the alien. If the alien 

departs after having obtained a grant of advance parole, the individual will be subject to the 3-year bar 

under section 212(a)(9)(B)(i)(I) of the Act. 

(5) Effect of Removal Proceedings on Unlawful Presence

(A) Initiation of Removal Proceedings

The initiation of removal proceeding has no effect, neither to the alien’s benefit nor to the alien’s 

detriment, on the accrual of unlawful presence. See 8 CFR 239.3 . If the alien is already accruing unlawful 

presence when removal proceedings are initiated, the alien will continue to accrue unlawful presence 

unless the alien is protected from the accrual of unlawful presence (as described in these AFM chapters).

If the alien is not accruing unlawful presence when removal proceedings begin, the alien will continue to 

be protected from the accrual of unlawful presence until the immigration judge determines that the 

individual has violated his or her status, or until Form I-94 , Arrival/Departure Record expires, whichever 

is earlier (and regardless of whether the decision is subsequently appealed).
Example 1:

An alien, who is present without inspection, is placed in proceedings. The alien was already accruing 

unlawful presence when placed in proceedings, and will continue to do so while in proceedings unless a 

provision described in this A FM chapter stops the accrual of unlawful presence. 

Example 2:

An alien, admitted as an LPR, is placed in removal proceedings because of a criminal conviction. As an 

LPR, the alien does not accrue unlawful presence. The alien will not begin to do so unless the alien 

becomes subject to a final order of removal, that is, when LPR status is terminated. 

Example 3:

An alien, admitted as a nonimmigrant for duration of status, is placed in removal proceedings. The alien 

does not accrue unlawful presence while the proceedings are pending. If the immigration judge rules in 

the alien’s favor on the removal charge, no unlawful presence applies to the alien. If the immigration 

judge sustains the removal charge, unlawful presence begins to accrue the day after the immigration 

judge’s decision becomes administratively final. 

Example 4:

An alien is admitted as a nonimmigrant until January 10, 2011. On March 15, 2009, DHS places the 

alien in removal proceedings, claiming that the alien had violated a condition of admission. On May 1, 

2010, the immigration judge sustains the removal charge, and the alien appeals. The Board of 

Immigration Appeals affirms the decision. Once the removal order becomes administratively final, the 

alien will accrue unlawful presence from May 2, 2010, the day after the immigration judge’s order. 

Example 5:

An alien is admitted as a nonimmigrant until January 10, 2011. On March 15, 2009, DHS places the 

alien in removal proceedings, claiming that the alien had violated a condition of admission. On May 1, 

2010, the immigration judge rules in the alien’s favor and dismisses the removal charge. The alien will 

not be deemed to have accrued any unlawful presence. 

Example 6:

An alien in unlawful status properly files with USCIS an adjustment of status application. USCIS denies 

the application and places the alien in proceedings. The alien renews the application before the 

Immigration Judge. Because the alien is renewing an affirmative application that had stopped the accrual 
of unlawful presence, the alien does not accrue unlawful presence while the adjustment application is 

pending before the IJ. 

Example 7:

An alien whose nonimmigrant admission ended on November 6, 2008, is placed in removal 

proceedings. On February 6, 2009, the alien files an adjustment application with the immigration judge. 

The alien had never filed with USCIS. Because the application is not the “renewal” of an affirmative 

application, filing the application with the immigration judge does not stop the accrual of unlawful 

presence. 

Example 8:

Same facts as in Example 7, except that the alien’s application is under NACARA or HRIFA. In this 

situation, filing the application does stop the accrual of unlawful presence. 

Example 9:

An alien is admitted as a nonimmigrant until January 10, 2011. On March 15, 2009, DHS places the 

alien in removal proceedings, claiming that the alien had violated a condition of admission. Removal 

proceedings are still pending on January 11, 2011. Regardless of the outcome of the proceedings, the 

alien will accrue unlawful presence the day after the I-94 expires, that is, on January 11, 2011. 

The result in Example 9 above is consistent with Matter of Halabi, 15 I&N Dec.105 (BIA 1974), where the 

Board of Immigration Appeals (BIA) held that the expiration of the alien’s authorized period of stay 

rendered the alien subject to removal without the need to resolve the original charge listed in the Notice to 

Appear (in Halabi , the individual was originally charged with having violated his status).

The BIA indicated that being able to charge the alien as a visa overstay from the date the alien’s period of 

authorized stay expired, although while in removal proceedings, did not “punish” the alien for contesting 

the original removal charge. See Halabi , at 106; see also Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 

471, 491 (1999) (Removal of an alien, who has remained longer than authorized, is not punishment but 

simply a matter of the alien’s “being held to the terms under which he was admitted.”); cf. Westover v. 

Reno, 202 F.3d 475 (1 st Cir. 2000) (dicta), and Halabi at 107-08 (Roberts, Board Chair, dissenting).

The alien may avoid any accrual of unlawful presence, for example, by offering to settle the removal 

proceeding by agreeing to leave the United States no later than the date his or her status expires in return 

for dismissal of the charge of having violated his or her status before that date. See 8 CFR 

239.2(a)(4) (notice to appear may be cancelled, if alien has left the United States).

Leaving at the expiration of the period of authorized stay and the resulting dismissal of removal 
proceedings would also avoid the risk of a ruling against the alien on the original charge of having violated 

his or her status before it expired.

(B) Effect of Filing an Appeal or Petition for Review on Unlawful Presence

As noted, the initiation of removal proceedings does not affect the accrual of unlawful presence. See 8 CFR 

239.3 . Thus, the fact that an alien or DHS files an appeal to the Board of Immigration Appeals (BIA) or 

seeks judicial review of a removal order or the relief granted, does not affect the alien’s position in relation 

to the accrual of unlawful presence.

If the Board or a Federal court vacates the removal order, however, the alien will not be deemed to have 

accrued unlawful presence solely on the basis of the vacated removal order. If the Board or the Federal 

court affirms the removal order, the alien will be deemed to have accrued unlawful presence from the date 

of the immigration judge’s order, unless the alien was already accruing unlawful presence on that date.

(6) Effect of an Order of Supervision pursuant to 8 CFR 241.5 on Unlawful Presence

Unless protected by some other provision included in this AFM chapter, an alien present in an unlawful 

status continues to accrue unlawful presence despite the fact that the alien is subject to an order of 

supervision under 8 CFR 241.5.

(c) Relief from Inadmissibility under Section 212(a)(9)(B)(i)(I) and (II), and Section 212(a)(9)(C)(i)(I) 

of the Act

(1) Waiver of the 3-Year Bar or the 10-Year Bar under Section 212(a)(9)(B)(i) of the Act

(A) Nonimmigrants

If a nonimmigrant is inadmissible, the nonimmigrant may apply for advance permission to enter as a 

nonimmigrant despite his or her inadmissibility pursuant to section 212(d)(3) of the Act, which is 

granted in the discretion of the Secretary of Homeland Security. If the alien is an applicant for a 

nonimmigrant visa at the American consulate, the alien will have to apply for this type of temporary 

permission through the consulate.

The application is adjudicated by the United States Customs and Border Protection (CBP), Admissibility 

Review Office (ARO) pursuant to section 212(d)(3)(A)(i) of the Act. If the alien is an applicant at the U.S. 

border for admission because he or she is not required to apply for a visa (other than visa waiver 

applicants), the application is filed with a CBP designated port of entry or designated Preclearance office. 

See section 212(d)(3)(A)(ii) and 8 CFR 212.4.
If the nonimmigrant status applicant is an applicant for T or U visa status, the applicant has to file Form I192 with USCIS at the Vermont Service Center (VSC).

(B) Immigrants and Adjustment of Status Applicants Who Are the Spouses,Sons, or Daughters of U.S. 

Citizens or LPRs, and Fiancé(e)s of U.S. Citizens

DHS has discretion to waive an alien’s inadmissibility under section 212(a)(9)(B) of the Act if the alien is 

applying for an immigrant visa or adjustment of status and the alien is the spouse, son, or daughter of a 

U.S. citizen or LPR, or the fiancé(e) of a U.S. citizen (in relation to a K-1/K-2 visa).

The alien must establish that denying the alien’s admission to the United States, or removing the alien from 

the United States would result in extreme hardship to the alien’s U.S. citizen or LPR spouse, parent, or the K 

visa petitioner. See section 212(a)(9)(B)(v) of the Act; see 8 CFR 212.7(a) .

The application is filed on Form I-601 , Application for Waiver of Grounds of Inadmissibility, with the 

respective fee as stated in 8 CFR 103.7(b) . There is no judicial review available, if the waiver is denied but 

the denial can be appealed to the Administrative Appeals Office of USCIS pursuant to 8 CFR 103 .

If the alien seeks a waiver in relation to an application for a K-1 or K-2 visa, approval of the waiver is 

conditioned on the K-1’s marrying the citizen who filed the K nonimmigrant visa petition within the 

statutory time of three (3) months from the day of the K-1 nonimmigrant’s admission.

The reason for this condition is that, at the time of the issuance of the K-1 or K-2 nonimmigrant visa, the 

K-1 and K-2 nonimmigrants are not yet legally related to the petitioner in the manner required by section 

212(a)(9)(B)(v) of the Act. If the K-1 nonimmigrant does not marry the petitioner, and the K-1 and K-2 

nonimmigrants do not acquire LPR status on that basis, USCIS may ultimately deny the Form I-601 .

There is no waiver available to an alien parent if only his or her U.S. citizen or LPR child experiences 

extreme hardship on account of the mother’s or father’s removal.

(C) Asylees and Refugees Seeking Adjustment of Status

Section 212(a)(9)(B) grounds of inadmissibility can be waived for Asylees and Refugees seeking 

adjustment of status pursuant to section 209(c) of the Act. Such aliens must file Form I-602, Application 

by Refugee For Waiver of Grounds of Excludability. Under current USCIS policy, it is within the 

adjudicator’s discretion to determine whether the waiver can be granted without requiring the filing of 

Form I-602. See AFM chapter 41.6 ; October 31, 2005, Domestic Operations memorandum – Re: Waiver 

under Section 209(c) of the Immigration and Nationality Act (AFM Update 05-33 ).

Normally, waiver applications for refugees are handled overseas before a person is approved for refugee 

classification. See 8 CFR 207.3(b) . However, if a ground of inadmissibility arose after the alien’s approval 

for refugee classification, or if the ground was not known to the officer who made such approval, the 
waiver may be sought and adjudicated as part of the refugee adjustment process. See AFM Chapter 

23.6 (Asylee and Refugee Adjustment).

(D) TPS Applicants

Section 212(a)(9)(B) of the Act may be waived for humanitarian purposes, to assure family unity, or 

when it would be in the public interest to grant the waiver. The waiver is filed on Form I-601, Application 

for Waiver of Grounds of Inadmissibility. See section 244 of the Act; 8 CFR 244.3 .

Granting a waiver to a TPS applicant for purposes of the TPS application does not waive any grounds of 

inadmissibility in connection with a subsequent application for adjustment of status, although both are 

filed on Form I-601 . This is because the standard for adjustment of status applicants to have a ground of 

inadmissibility waived is generally an “extreme hardship”- standard for section 212(a)(9)(B) of the Act 

(3-year and 10-year bars), and not the lesser standard for TPS, i.e. the standard that the waiver may be 

granted for “humanitarian purposes, to assure family unity, or public interest.”

Therefore, if an adjustment of status applicant, who was previously granted TPS status, presents an 

approved Form I-601 to the adjudicator, the adjudicator should not accept this approved Form I-601 as 

evidence that the alien is not inadmissible under section 212(a)(9)(B) of the Act for purposes of the 

adjustment of status application. Rather, the adjudicator should direct the applicant to file a new Form I601 to overcome the specific grounds of inadmissibility for adjustment of status purposes.

(E) Legalization under Section 245A of the Act and Any Legalization-related Class Settlement Agreements, 

and Legalization Applicants pursuant to 8 CFR 245a.2(k) and 8 CFR 245a.18

The waiver can be granted for humanitarian purposes, to ensure family unity, or when the granting of such 

a waiver is otherwise in the public interest. The waiver is filed on Form I-690 , Application for Waiver of 

Grounds of Inadmissibility pursuant to Section 245A or Section 210 of the Immigration and Naturalization 

Act.

(2) Waiver of the Permanent Bar under Section 212(a)(9)(C)(i)(I) of the Act

Generally, there is no “waiver” of inadmissibility under section 212(a)(9)(C)(i)(I) of the Act. Rather, an 

alien who is inadmissible under section 212(a)(9)(C)(i) of the Act must, generally, obtain consent to 

reapply for admission under section 212(a)(9)(C)(ii) of the Act. See AFM chapter 43 concerning Consent 

to Reapply, which is sought by filing Form I-212 , Application for Permission to Reapply for Admission 

into the United States after Deportation or Removal.

As stated by the Board of Immigration Appeals (BIA) in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), 

the consent to reapply regulation at 8 CFR 212.2 predates the enactment of section 212(a)(9)(C) of the 

Act and the related consent to reapply provision in section 212(a)(9)(A)(iii) of the Act.
Thus, although the filing procedures in 8 CFR 212.2 are still in effect, the substantive requirements of the 

provisions in section 212(a)(9) of the Act govern during the adjudication of Form I-212 , Application for 

Permission to Reapply for Admission into the United States After Deportation and Removal; a USCIS 

adjudicator must consider the specific requirements of section 212(a)(9)(C)(ii) of the Act when 

adjudicating Form I-212.

A Form I-212 cannot be approved for an alien who is inadmissible under section 212(a)(9)(C)(i) of the 

Act unless the alien has been abroad for at least 10 years. Matter of Torres-Garcia, supra . This rule applies in the 

9 th Circuit as well as in other circuits. Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9 th Cir. 

2007).

There are, however, some waivers that are also available to certain categories of aliens, who are 

inadmissible under section 212(a)(9)(C)(i)(I) of the Act. If an alien is eligible for one of these waivers, 

and the waiver is granted, it is not necessary for the alien to obtain approval of a Form I-212 .

(A) HRIFA and NACARA Applicants

A waiver can be granted at the discretion of USCIS. The waiver is sought by filing Form I-601, Application 

for Waiver of Grounds of Inadmissibility. See 8 CFR 245.13(c)(2) and 8 CFR 245.15(e)(3) . However, the 

standard that applies to the adjudication is the same standard as if the alien had filed Form I-212 , 

Application for Permission to Reapply for Admission into the United States after Deportation or Removal.

See February 14, 2001 Office of Field Operations Memorandum, Changes to Section 202 of the Nicaraguan Adjustment 

and Central American Relief Act (NACARA), and the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), based Upon the 

Provisions of and Amendments to the Legal Immigration Family Equity Act (LIFE).

(B) Legalization, SAW, LIFE Act Legalization, and Legalization Class Settlement Agreement Applicants

A waiver can be granted to such an applicant, if the applicant establishes that a waiver should be granted 

based on humanitarian reasons, to ensure family unity, or because granting the waiver would be in the 

public interest. The waiver is filed on Form I-690 , Application for Waiver of Grounds of Excludability 

under section 245A or section 210 of the Act. See 8 CFR 210.3(e) , 8 CFR 245a.2(k) , and 8 CFR 

245a.18(c) .

(C) TPS Applicants

TPS applicants may obtain waivers for certain grounds of inadmissibility, including inadmissibility 

under section 212(a)(9)(C) of the Act. See section 244(c)(2) of the Act. The permanent bar may be 

waived for humanitarian purposes, to assure family unity, or when the granting of the waiver is in the 

public interest. See 8 CFR 244.3 . The waiver is filed on Form I-601 , Application for Waiver of Grounds of 

Inadmissibility. See id .
Granting a waiver to an applicant for purposes of the TPS application does not waive any grounds of 

inadmissibility in connection with a subsequent application for adjustment of status, although both are 

filed on Form I-601 . This is because the standard for adjustment of status applicants to have waived 

inadmissibility is different from the one used for TPS applicants.

In order to overcome the permanent bar to admissibility under section 212(a)(9)(C)(i)(I) of the Act, an 

applicant for an immigrant visa has to file Form I-212 , Application for Permission to Reapply for 

Admission into the United States after Deportation or Removal, rather than Form I-601 , and no earlier 

than ten (10) years after the alien’s last departure. See section 212(a)(9)(C)(ii) of the Act.

Therefore, if an adjustment of status applicant, who was previously granted TPS status, presents an 

approved Form I-601 to the adjudicator, the adjudicator should not accept this approved Form I-601 as 

evidence that the person is not inadmissible under section 212(a)(9)(C)(i)(I) of the Act for purposes of 

the adjustment of status application.

Any Form I-212 that is filed by a TPS applicant would be adjudicated according to same principles that 

apply generally to aliens who are inadmissible under section 212(a)(9)(C)(i)(I) of the Act, including the 

requirement that the alien may not obtain consent to reapply under section 212(a)(9)(C)(ii) unless the 

alien satisfies the 10-year absence requirement in the statute.

(D) Certain Battered Spouses, Parents, and Children

An approved VAWA self-petitioner and his or her child(ren) can apply for a waiver from inadmissibility 

under section 212(a)(9)(C)(i) of the Act, if he or she can establish a “connection” between the abuse 

suffered, the unlawful presence and departure, or his or her removal, and the alien’s subsequent unlawful 

entry/entries or attempted reentry/reentries. See section 212(a)(9)(C)(iii) of the Act.

The waiver is filed on Form I-601 , Application for Waiver of Grounds of Inadmissibility, with fee. If the 

waiver is granted, the ground of inadmissibility and any relating unlawful presence is deemed to be erased 

for purposes of any future immigration benefits applications.

(E) Asylee and Refugee Adjustment Applicants under Section 209(c) of the Act

Asylee and Refugee applicants for adjustment of status may obtain a waiver of inadmissibility in lieu of 

consent to reapply. The waiver is filed on Form I-602 , Application by Refugee for Waiver of Grounds of 

Excludability. See 8 CFR 209.1 and 8 CFR 209.2(b) ; see also AFM chapter 41.6 .

Under current USCIS policy, it is within the adjudicator’s discretion to determine whether the waiver can 

be granted without requiring the filing of Form I-602 . See AFM chapter 41.6 ; October 31, 2005, 

Domestic Operations memorandum – Re: Waiver under Section 209(c) of the Immigration and Nationality Act 

(AFM Update 05-33 ).
Normally, waiver applications for refugees are handled overseas before a person is approved for refugee 

classification. See 8 CFR 207.3 . However, if a ground of inadmissibility arose after the alien’s approval for 

refugee classification, or if the ground was not known to the officer who made such approval, the waiver 

may be sought and adjudicated as part of the refugee adjustment process. See AFM chapter 23.6 (Asylee and 

Refugee Adjustment).

Note that the 10-year waiting period normally imposed on applicants for consent to reapply under this 

ground of inadmissibility ( see section 212(a)(9)(C)(ii) of the Act) does not apply to refugee and asylee 

adjustment applicants.

(F) Nonimmigrants

An alien who is inadmissible under section 212(a)(9)(C)(i)(I) may, as a matter of discretion, be admitted 

as a nonimmigrant under section 212(d)(3) of the Act.

The alien may make the application when applying for the nonimmigrant visa with the Department of State 

or, if eligible, file Form I-192 to seek this benefit. Obtaining relief under section 212(d)(3) does not 

relieve the alien of the need to obtain consent to reapply under section 212(a)(9)(C)(ii) of the Act if the 

alien seeks to acquire permanent residence.
40.10 Section 212(a)(10) of the Act - Miscellaneous [Reserved] 
Appendix 40-1 Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of 

the Immigration and Nationality Act (Act) [Appendix added 03-03-2009] 






Appendix 40-2 New Waiver Provisions, INA 212(i), has been superseded by USCIS Policy 

Manual, Volume 9: Waivers as of March 25, 2014 
 

 

Appendix 40-3 Memorandum – Changes to Vaccination Requirements for Adjustment of 

Status and Form I-693 has been superseded by USCIS Policy Manual, Volume 8, Part B: 

Health-Related Grounds of Inadmissibility as of January 28, 2014.