In 1996, Congress passed a law that bars certain persons who have accrued a certain period of unlawful presence (UP) in the US and then left the country from becoming US permanent residents for 3 to 10 years unless they obtain a waiver.
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.
Prior to August 9, 2018, a person in F, J or M status who was admitted to the United States for their Duration of Stay (D/S) did not incur unlawful presence even if he worked without authorization or stopped going to school. Unlawful presence only began when the government found that he had violated his status.
Starting on August 9, 2018, he begin incurring unlawful presence on the day that he began to violate his status. However, the new rule is not retroactive. Any status violation prior to August 9, 2018 by a person in F, J or M status is subject to the former rule.
On October 23, 2018, this new rule was challenged in Federal Court and on May 3, 2019, a Federal Judge enjoined USCIS from using it. See below.
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.
This page is divided into the following subsections:
- Saving Our Client from the 10 Year Bar
- Demonstrating Extreme Hardship
- Green Card Through Hardship
- Reuniting a Family through an I-212 Waiver
- Obtaining a Non-Immigrant Visa Waiver
- Extreme Hardship Waiver Brings Dog Trainer Home to His Pack
- Obtaining a Waiver for the Permanent Bar
- Immigration Judge Grants I-601 Fraud Waiver
- Reversing An Erroneous USCIS Decision
- Circumventing the Three-Year Bar
- Fraud Waiver and Managing Editor
VIDEOS – UNLAWFUL PRESENCE
- 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.
- Federal Court Enjoins Enforcement Of Unlawful Presence Memo For Students & Exchange Visitors (5-03-19)
- Accrual of Unlawful Presence and F, J, and M Nonimmigrants – NAFSA (10-24-18)
- New USCIS Unlawful Presence Regulation Challenged in Federal Court (10-23-18)
- USCIS Tightens Unlawful Presence Rules For Persons in F, J and M Status (8-09-18)
- 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
- USCIS Chief Counsel: 3 and 10 Year Bar Requirements May be Fulfilled in the U.S. (1-26-09)
- 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)
- INS Issues Foreign Travel Advisory For Aliens With Pending Immigration Applications (11-22-00)
- INS General Counsel’s List of Resolved Issues (12-10-99)
- UP Hypothetical Questions and Answers
- DOS Cable Re: UP and Canadians
- INS Advises on Asylee Exception to UP (6-8-99)
- State Department Memo on Bars of Inadmissibility (4-4-98)
- State Department’s Cable on UP (12-17-97)
- INS Memo on Adjustment of Status and Entitlement Bars (6-17-97)
Court Opinions and Decisions
- Matter of’ F- V-C-, ID# 11163 74 (AAO April 19, 2018) – Non-precedent decision holding that the 10-year unlawful presence bar is not eliminated by 10 years presence in the U.S. absent a 212(d)(3) waiver.
- 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.
Unlawful Presence Bars: Additional Resources
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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