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Congress passed a law in 1996 which bars people from who accumulated a certain amount of time of unlawful presence (UP) then left the US, from becoming permanent residents for a specific period of time unless they file a waiver of the unlawful presence they accumulated. 

A person who has 180 days or more of unlawful presence in the US after April 1, 1997, then left the country, will not be allowed to return to the US for 3 years. Individuals who have 1 year or more of unlawful presence after April 1, 1997, then left the country, cannot return to the US for 10 years. If a person returns to the US without a waiver must wait outside the US for 10 years before they can even apply for a waiver. This same law also applies to persons who reenter the US after being deported. 

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How is Unlawful Presence Calculated

A person can accumulate unlawful presence by (1) coming to the US without being inspected by immigration officials at the boarder, (2) overstaying his visa in the US by not leaving after his visa expires, or (3) by violating his status by being notified by the government of the violation of status. 

If a person accumulates unlawful presence in the US, they must obtain a waiver by filing form I-601 to the USCIS. In addition, he must show by convincing evidence that his US citizen or Green Card holder spouse or parent'(s) would suffer "extreme hardship" if he is not able to join them in the US and therefore the waiver should be granted. 

In 2013, the US congress expanded the I-601 and it became possible to apply for a I-601A while remaining in the US. A 2016 rule expanded the qualifying relatives needed in order to apply for a provisional waiver.

We hope that the materials linked to below help you to better understand both concepts.


Court Opinions and Decisions

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