₦airaland Forum

Zebudaya,

This is an internet forum. Is Old Glory an Immigration Attorney? If you need concrete and direct advice, seek counsel. If he is not an attorney, it is a violation to hold out as one.

Praetor,
Your friend needs to go back to wherever she's from and sort herself out. She's unlawfully present in the United States and risks deportation. These are the rules:

(1) The new INA §212(a)(9)(B)(i)(I) provides that any alien who has been unlawfully present in the United States (presence in the United States after the expiration of lawful status or presence in the United States without being admitted or paroled) for a period of more than 180 days but less than 1 year and voluntarily departed the United States (whether or not pursuant to section 244(e) prior to the commencement of proceedings, is excludable for a period of 3 years.

This means that if your friend had only violated her nonimmigrant status for less than one year, she would not be able to come back to the U.S for 3 years.

(2) The new INA §212(a)(9)(B)(i)(II) provides that any alien who has been unlawfully present in the United States (presence in the United States after the expiration of lawful status or presence in the United States without being admitted or paroled) for 12 months or more is excludable for 10 years.

In other words, since she has been here for 18 months, she will be barred from re-entering the U.S for 10 years. However, the following are excluded from these limitations: minors, asylees, family unity beneficiaries and battered women and children.

An immigrant waiver is available under INA §212(a)(9)(B)(v) for an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.

Now, the question is this: do the 18months include the 90 days? Is she a battered woman? From your post, I presume that she is not married, not a minor hasn't filed for asylum, etc.

Please note that unlawful presence with respect to a nonimmigrant includes only periods of stay in the United States beyond the date noted on Form I-94, Arrival/Departure Record. Unlawful presence does not begin to run from the date of a status violation (including unauthorized employment).

Unlawful presence for a nonimmigrant may begin to accrue before the expiration date noted on the I-94, however, in two circumstances: (1) when an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings, or (2) when the Service makes such a determination during the course of adjudicating a benefit application. In cases where the immigration judge finds there was a status violation, unlawful presence begins to accrue as of the date of the order of the immigration judge, whether or not the decision is appealed. (If the judge grants voluntary departure, however, the voluntary departure period is not considered unlawful presence).

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