Unlawful Presence Bars & Waivers

Persons who have accrued a certain period of unlawful presence (UP) in the US and then left the country are subject to unlawful presence bars from returning to the US.

Persons who have accumulated more than 180 days of UP after April 1, 1997, and have then left the country, cannot return to the US for 3 years. Persons who have accrued one year or more of UP after April 1, 1997, and have then left the country, cannot return to the US for 10 years. Persons who illegally return to the US without seeking a waiver must wait outside the US for a period of 10 years before they can apply for a waiver.


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A person can accumulate UP by (1) entering the US without inspection; (2) by overstaying the expiration date on his I-94; or (3) by violating his immigration status.

A waiver may be applied for by submitting Form I-601 to the USCIS and demonstrating that the person’s US citizen or permanent resident spouse or parent(s) would suffer “extreme hardship” unless the person is granted a waiver.

Since 2013, it has been possible to obtain an I-601A provisional waiver within the US. A 2016 rule expanded the qualifying relatives needed in order to apply for a provisional waiver.

On August 9, 2018, the USCIS tightened the criteria for determining what constitutes unlawful presence for F, J and M student status violators.  On February 6, 2020,  a Federal Judge struck down this rule holding that it did not comply with US immigration laws.  The Government is expected to appeal this decision.

We hope that the materials linked to below help you to better understand who is subject to the UP bars and whether a waiver is possible.

Unlawful Presence Bars is divided into the following subsections:

Related pages:



unlawful presence

More success stories…



  • Unlawful Presence Bars and Waivers – Unlawful presence can complicate your return to the US, and applies to persons who: (1) entered the US without inspection; (2) overstayed their visa; or (3) violated their temporary visa status.



  • I-601A Provisional Unlawful Presence Waivers – The Provisional Unlawful Presence Waiver (I-601A) allows certain persons to apply for waivers of unlawful presence in the US before going to their home countries for their green card interviews.





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Unlawful Presence Bars – Additional Resources

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