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Unlawful Presence Bars and 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.

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A person can accumulate unlawful presence by (1) entering the U.S. without inspection; (2) by overstaying the expiration date on his I-94; or (3) by violating his status if he is notified by the government that he has done so.

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.

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:

Related pages:


unlawful presence

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  • 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.


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