Hi guys, I've already posted about this but I'm just trying to get some clarification regarding the 10 year ban. My husband was in the states unlawfully for 3 years and left without knowledge of the 10 year ban (he wanted to do the right thing by leaving so he can come back and be there legally, boy did that bite us in the a**) he also wasn't aware of the fact that he was unable to use the visa waiver program since he overstayed on it. Since he didnt know we went back to the US to visit my family on 2 seperate occasions both 3 weeks at a time and he was admitted under the vwp with no problems. Does the ban start from when he left from his last visit or from when he left after he accrued the unlawful presence?

The ban is "activated" when someone leaves the country. 180 + days of illegal presence = a 3 year ban and more than one year = a 10 year ban. Time overstayed is cumulative (but that doesn't matter here since he was in country for 3 years illegally and as you already know, has a 10 year ban).

http://travel.state.gov/visa/frvi/ineligib...ities_1364.html

B ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235b(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

Ok so I guess by what you're saying is that even though he visited while the 10 year ban was in effect, the ban activated when he departed after being unlawfully present? I just haven't found any clarification regarding visits within the 10 year ban period....

My guess is the reason you haven't found any clarification regarding visits within the 10 year ban period is because most people who were illegally present in the US and left don't have an option to get admitted again. Those who accrued illegal presence of more than one year and then re-entered are not allowed to file a waiver for 10 years. This is totally different from the 10 year ban which CAN be waived with a 601.

Aliens Unlawfully Present After Previous Immigration Violations

INA §212(a)(9)C provides that aliens who were unlawfully present in the United States for an aggregate period of more than one year (or who have been ordered removed), and who subsequently enter (or attempt to enter the United States without being lawfully admitted), are excludable. A waiver is permitted if the alien is seeking admission more than 10 years after the alien's departure from the United States and if, prior to the alien's embarkation, the Attorney General has consented to the alien's reapplying for admission.

I'm not sure how he was able to get legally admitted under the VWP unless he lied on paperwork? If so, this could create more problems. Bottom line, he has a 10 year ban and whether or not they will allow him to file a waiver before 10 years have passed *may*depend on how he was able to re-enter, meaning if mistakes were made in allowing him in, or if he lied.

You should definitely consult a lawyer to understand if this provision above applies to him and the VWP, and to understand exactly what you will be facing.

kikat, Just a quick one, I was interested in an answer to when the ban started, so in case the person left let say august 2003 after 20 days of overstaying on a wvp and was admitted on jan 2004 , this time no overstay but was refused entry in june 2004, when do the ban start if the person has got one, will it be August 2003 or June 2004 or Jan 2004, please help and thanks for your suggestions in here, you are great???

Normally a ban starts the minute the person leaves the country post-overstay. It's the act of leaving that activates the ban.

I don't understand how people are able to get back in using the VWP after an overstay, so maybe something is different with this program that needs to be researched more to be safe.