WHAT IS UNLAWFUL PRESENCE?
In simple terms, unlawful presence refers to the amount of time spent in the United States in violation of U. S. Immigration laws. A person can accrue unlawful presence by:
- Not being admitted or paroled;
- Sneaking across the U.S. border;
- Entering the U.S. fraudulently (using fake documents example a visa or passport); or
- Entering the U.S. legally but overstaying the authorized period of stay
Whether by entering the U.S. illegally or overstaying a visa, unlawful presence may complicate your immigration options. Apart from the potential risk of deportation, the risk of a reentry bar for either three or ten years may be triggered. In some cases, even a permanent bar to reentry may be triggered. Whether deported or departing the U.S. on your own, accruing unlawful presence will subject you to a reentry bar and you will not be allowed to return to the United States for the applicable period of time barred.
Although not the subject of this article, it should be noted that U.S. Immigration laws, do provide for narrow exceptions for the accrual of unlawful presence for minors (under the age of 18), family unity beneficiaries, battered spouses and children and victims of severe forms of trafficking.
UNLAWFUL TIME BARS: WHAT ARE THEY AND HOW ARE THEY TRIGGERED
The accrual of unlawful presence is a complex area of U.S. Immigration law that has severe consequences for noncitizens who have remained or entered in the U.S. unlawfully. The consequence of accruing unlawful presence is that individuals who leave the U.S. after accumulated unlawful presence will be prohibited from reentering the U.S. even by lawful means, for either three or ten years. Possibly even “permanently”.
For those who have accrued unlawful presence, specific consequences are triggered when they depart from the U.S:
3 Year Bar:
- If a person is unlawfully present in the U.S. for more than 180 but less than 365 days and leaves the U.S., he or she will be subject to a 3-year bar from the U.S.; and
10 Year Bar:
- If a person is unlawfully present in the U.S. for more than one year and leaves the U.S., he or she will be subject to a 10-year bar from the U.S. The visa of a person who is even one day unlawfully present is automatically invalidated under Section 222(g) of the Immigration and Nationality Act.
Permanent Bar:
- A person can trigger a permanent bar if they have stayed in the United States unlawfully for over a year, departed/were removed from the U.S., and then tried to enter the U.S. illegally again. (Reference is made to permanent bar for informational purposes, although not the direct subject of this article).
I-601A WAIVER
Both the three- and ten-year bars can be overcome with the granting of a provisional waiver. To qualify for a provisional, I-601A waiver not to be confused with a I-601 wavier (which waives most grounds of inadmissibility, but not all). The I-601A waiver only waives unlawful presence.
One way to avoid triggering an unlawful presence bar is through family-based adjustment of status. For instance, if a noncitizen was lawfully admitted, and overstayed their visa, but had never left the United States, they can apply for an Adjustment of Status through a U.S. citizen spouse while in the U.S. In this scenario, a I-601A waiver is not necessary since the noncitizen has never left the U.S.
In most cases the scenario described above is not possible and in this case a I -601A waiver must be applied provided there is a qualifying family member such as U.S. Citizen or lawful permanent resident spouse or parent. No other relatives (including U.S. citizen or LPR children) may be qualifying family members for this type of waiver.
If there is a qualifying family member- there must be a showing that the qualifying family member will suffer extreme hardship if the waiver applicant (i.e., noncitizen spouse or child) is denied the waiver. Extreme hardship is not defined, but it is the type of hardship that far exceeds the normal hardship such as family separation or financial hardship.
However, the benefits of the I-601A waiver are that it allows a noncitizen spouse who is presently in the U.S. but will have to depart to consular process, to apply for the I-601A waiver before leaving the U.S. If the I-601A waiver is approved the unlawful presence three- or ten-year bar from reentry are not triggered. This in turn reduces the time one must be away from family to complete the consular processing.
The immigration regulations are exceedingly complex and any matters concerning unlawful presence need professional analysis. At TCB Legacy Law, we can assist you to understand your legal options and can counsel you regarding your long-term immigration goals depending on your immigration needs. U.S. Immigration laws are not easy and are ever changing. If you are considering emigrating or are facing issues associated with unlawful presence, denial of a I-601A waiver or being out of status contact our office now for a consultation with Attorney Andre Mckenney-Dorval 954-302-8989.
