By Debbie McGoldrick

“My niece left the U.S. in September 2003 after her first trimester of pregnancy because she wanted to give birth to her son in Northern Ireland. She had originally arrived in November 2002, which means she overstayed the visa waiver by seven months. She tried to re-enter with her two-month old baby in May 2004, to reunite with the baby’s father (an undocumented immigrant from Mexico.) She got turned away by U.S. immigration in Dublin, after being caught lying about her departure date from the U.S. She had handed in her I-94 card at the time, and they had it on file. She is now subject to a three-year ban from the U.S. Does the ban expire three years after the date she first left in September of 2003, or three years after the date she was refused re-entry in May of 2004. She and the baby’s father have had to accept the situation and have gone their separate ways, but she wants to be able to visit him with the baby.”

According to Bill Strausberger, spokesman for United States Citizenship and Immigration Service (USCIS) in Washington, D.C., your niece will be eligible to re-enter the U.S. in September of 2006, three years after she departed the U.S.

By way of background — most immigrants are keenly aware of the three or 10-year bans that can be imposed on undocumented residents who leave the U.S., and attempt to re-enter at a later time. These bans were created as part of the Illegal Immigration Reform and Immigrant Responsibility Act which was passed in 1996.

As the act implies, its intention was to get tough on illegals, especially those who had established residences here, yet travelled in and out of the country without repercussion.

Here’s how the law is worded — it’s officially known as Section 212(a)(9)(b) of the Immigration and Nationality Act. “Any alien (other than an alien lawfully admitted for permanent residency) who —

(I) was unlawfully present in the U.S. for a period of more than 180 days but less than one year, voluntarily departed the U.S. ... and who again seeks admission within three years of the date of such alien’s departure or removal, or

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

As your niece clocked up seven months of undocumented residence here, she is subject to the three-year ban, as she has already discovered. Had she remained here illegally for a year or more, she would have been barred from re-entering the U.S. for 10 years.

The law is written to say that the three (or 10) year ban takes effect on the date of departure from the U.S., or in the case of your niece, September of 2003.

Something else your niece will need to know — when her three-year ban is up and she wants to return to the U.S., she will not be able to do so under the visa waiver program that she used previously. The waiver program allows travellers from certain countries to enter the U.S. without having to obtain a visa for stays up to 90 days.

Those who have been refused admission to the U.S. before, or have not complied with the waiver program’s rules on previous visits, are ineligible to avail of the visa waiver. Your niece will have to apply for a B-1 tourist visa when she wants to travel to the U.S. She should contact the U.S. consular office in Belfast before she wishes to travel to get the process started.