UNLAWFUL PRESENCE BARS & WAIVERS
In 1996, Congress passed a law that bars certain persons who have accumulated a certain period of “unlawful presence” in the U.S. and then left the country from becoming US permanent residents for a period of time unless they first obtain a waiver.
Persons who have accumulated 180 days or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 3 years. Persons who have accumulated one year or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 10 years. Persons who illegally return to the U.S. without seeking a waiver must wait outside the U.S. for a period of 10 years before they can apply for a waiver. The same rule applies to persons who illegally reenter the U.S. after being deported.
Persons who commit fraud or a material misrepresentation are barred from the U.S. for life unless they obtain a waiver.
A waiver may be obtained by submitting Form I-601 to the USCIS and demonstrating that the person’s U.S. citizen or permanent resident spouse or parent(s) would suffer “extreme hardship” unless the person was granted a waiver.
“I can honestly say that Mr. Carl Shusterman and his team are probably the best in the business when it comes to immigration matters. Carl’s greatest asset is his prior work experience as a former INS prosecutor. My family and I were on the verge of being deported from the United States. Because of Carl’s expertise and dedication, not only are we allowed to remain in this country permanently but are on path of obtaining citizenship…” (More client reviews…)
The definition of what constitutes “unlawful presence” is extremely complex. So is the determination of what is “extreme hardship”.
We hope that the materials linked to below help you to better understand both concepts.
This page is broken up into the following subsections:
- Reuniting a Family through an I-212 Waiver (November 2012)
- Obtaining a Non-Immigrant Visa Waiver (September 2012)
- Extreme Hardship Waiver Brings Dog Trainer Home to His Pack (September 2011)
- Obtaining a Waiver for the Permanent Bar (April 2011)
- Immigration Judge Grants I-601 Fraud Waiver (February 2011)
- Reversing An Erroneous USCIS Decision (May 2008)
- Circumventing the Three-Year Bar (August 2006)
- Fraud Waiver and Managing Editor (December 2004)
- Policy Memo: Filing Exceptions for Form I-601 and Any Associated Form I-212 (6-13-12)
- USCIS: Centralized Filing for I-601 Waivers (6-4-12)
- Leaving U.S. on Advance Parole Does Not Trigger Unlawful Presence Bars – Matter of Arrabally Yerrabelly, 25 I&N Dec. 771 (BIA 2012)
- Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives – Proposed Rule (4-02-12)
- Immigrant Waivers: Procedures for Adjudication of Form I-601 For Overseas Adjudication Officers (USCIS)
- Consolidation of Guidance Concerning Unlawful Presence (5-6-09) – Supersedes Previous Memos
- USCIS Chief Counsel: 3 and 10 Year Bar Requirements May be Fulfilled in the U.S. (1-26-09)
- AAO: I-601 Waiver Victory – 10-year Bar (1-09-08)
- AAO: I-601 Waiver Victory – 10-year Bar (10-31-07)
- USCIS on Effect of Presence in the U.S. for Persons Paroled in Despite Being Subject to 212(a)(9)(B) Bar of Inadmissibility (7-14-06)
- Guidance on “Period of Stay Authorized by the Attorney General” in Determining “Unlawful Presence (4-02-03)
- INS Issues Foreign Travel Advisory For Aliens With Pending Immigration Applications (11-22-00)
- INS Memorandum: No Unlawful Presence During Pendency of Application for COS/EOS (3-3-00)
- INS General Counsel’s List of Resolved Issues (12-10-99)
- Unlawful Presence Hypothetical Questions and Answers
- DOS Cable Re: Unlawful Presence and Canadians
- INS Advises on Asylee Exception to Unlawful Presence (6-8-99)
- State Department Memo on Bars of Inadmissibility (4-4-98)
- State Department’s Cable on “Unlawful Presence” (12-17-97)
- INS Memo on Adjustment of Status and Entitlement Bars (6-17-97)
- Unlawful Presence Bars and Waivers
Unlawful presence can complicate your return to the U.S., and applies to persons who: (1) entered the U.S. without inspection; (2) overstayed their visa; or (3) violated their temporary visa status.
- I-601A Provisional Unlawful Presence Waiver
The new Provisional Unlawful Presence Waiver (I-601A) allows eligible immediate relatives of U.S. citizens to apply for a waiver while in the U.S. before going to their home countries for their green card interviews.
Court Opinions and Decisions
- In Re Honorio TORRES-GARCIA, BIA (1-26-06) An alien who reenters the U.S. without admission after having previously been removed is inadmissible under the permanent bar.
- Duran-Gonzalez v. Homeland Security, U.S. Court of Appeals, Ninth Circuit (11-30-07) Adjustment of status under section 245(i) is not available to an alien who is inadmissible under the permanent bar.
- In re Miguel LEMUS-Losa, BIA (11-29-07) An alien who is unlawfully present in the U.S. for a period of 1 year, departs and then seeks admission within 10 years is inadmissible.
- In re Alonzo BRIONES, BIA (11-29-07) Adjustment of status under section 245(i) is not available to a person who is inadmissible under the permanent bar.