Unlawful Presence Bars & Waivers

In 1996, Congress passed a law that bars certain persons who have accumulated a certain period of unlawful presence 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 unlawful presence after April 1, 1997, and have then left the country, cannot return to the US 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 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 unlawful presence 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.

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

This page is divided into the following subsections:

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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.

 

 

 

GENERAL INFORMATION – UNLAWFUL PRESENCE (UP)

 

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