Unlawful Presence Bars & Waivers
Immigration law bars persons who have accumulated a certain period of unlawful presence (UP) in the US 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 UP 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 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. The same rule applies to persons who illegally reenter the US after being deported.
On June 23, 2022, USCIS issued policy guidance whereby a noncitizen who again seeks admission more than 3 or 10 years after departure or removal is not inadmissible under INA 212(a)(9)(B), even if the noncitizen returned to the U.S., with or without authorization, during the statutory 3-year or 10-year period.
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 status if he is notified by the government that he has done so.
A waiver may be obtained 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 was granted a waiver.
In 2013, it became 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.
Persons who have accumulated 180 days or more of UP 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 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. The same rule applies to persons who illegally reenter the US after being deported.
On June 23, 2022, USCIS issued policy guidance whereby a noncitizen who again seeks admission more than 3 or 10 years after departure or removal is not inadmissible under INA 212(a)(9)(B), even if the noncitizen returned to the U.S., with or without authorization, during the statutory 3-year or 10-year period.
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 status if he is notified by the government that he has done so.
A waiver may be obtained 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 was granted a waiver.
In 2013, it became 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.