For those who enter without inspection, the definition is being present without being admitted or paroled. Admissibility refers to whether an alien may lawfully enter the United States. Parole is INS permission for an alien to arrive and remain in the United States, short of being admitted. Aliens under 18 years old Bonafide asylum applicants, unless the alien was employed without authorization during the application process. Beneficiaries of U.S. citizen or resident family unity petitions.
Adjustment of status takes place within the United States without a departure.
The plain interpretation of the statute supports the conclusion that actual departure is required, because the word departure is specified. The current INS position supports this interpretation, contrary to the historical theory of admission. The difference in interpretation is particularly critical to processing of adjustment of status cases. If Congress does not act, immigration lawyers will be unable to obtain benefits for clients who will soon be barred. These changes will affect countless aliens.