Determining Unlawful Presence for Purposes of the 3-Year, 10-Year, and Permanent Bars

Determining Unlawful Presence for Purposes of the 3-Year, 10-Year, and Permanent Bars

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This article focuses on what constitutes unlawful presence for purposes of the three-year, ten-year, and permanent bars. Lee O'Connor walks the reader through the intricacies of unlawful presence and offers practice advice by providing arguments and counterarguments that counsel can make on behalf of their clients.


This article discusses:

  • The Definition of Unlawful Presence
  • Authorized Stay Distinguished from "Status"
  • Effective Date of Unlawful Presence
  • Statutory Exceptions to Unlawful Presence
  • Counterarguments to USCIS Contentions on the Permanent Bar
  • Categories Implicitly Exempted from Unlawful Presence
  • Policy Exceptions to Unlawful Presence
  • Categories Not Considered POSABAG



October 2010
pdf format
20 pages


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Lee A. O’Connor has been the directing attorney of the Immigrants’ Rights Center at Indiana Legal Services since 1999. Previously, he supervised the immigration units at legal services organizations in San Diego and Los Angeles. He received his J.D. from Loyola Law School in Los Angeles and his B.A. in Political Science from the University of California, Berkeley. Lee is chair of the Indiana American Immigration Lawyers Association (AILA) chapter and previously served as its vice chair and treasurer. He is the 2010 recipient of AILA’s Sam Williamson Mentor Award and a co-recipient, as a member of the AILA Amicus Committee, of the 2010 Jack Wasserman Litigation Award. He has published various articles and has spoken at numerous national and regional conferences on immigration law, including presentations at the AILA Annual Conferences in 2007, 2009, and 2010; and to the National Legal Aid & Defender Association; the Federal Bar Association; the Indiana State Bar Association; the Indiana Public Defender Council; and the Indiana Pro Bono Commission. He was recently selected to be an immigration judge in Los Angeles, California and should take the bench in November or December 2010.

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