UNLAWFUL PRESENCE BARS & WAIVERS

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.

GENERAL INFORMATION – UNLAWFUL PRESENCE

Duran Gonzalez v. DHS Settlement Q&A: Eligibility for Adjustment of Status Under Section 245(i) with I-212 Waiver (7-30-14)
Policy Memo: Filing Exceptions for Form I-601 and Any Associated Form I-212 (6-13-12)
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
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 (12-17-97)
INS Memo on Adjustment of Status and Entitlement Bars (6-17-97)
Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives – Proposed Rule (4-02-12)
USCIS: Centralized Filing for I-601 Waivers (6-4-12)

What is Extreme Hardship?

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.