Understanding Unlawful Presence and Time Bars

Foreign nationals who remain in the United States without valid immigration status may face legal consequences, including restrictions on reentry. Under the Immigration and Nationality Act, individuals who accrued unlawful presence after April 1997 may be subject to a three-year bar or a 10-year bar depending on the duration of their unlawful stay before departure.

• Three-Year Bar: Applies to individuals who were unlawfully present in the U.S. for more than 180 consecutive days and then voluntarily left.
• Ten-Year Bar: Applies to individuals who were unlawfully present for more than one uninterrupted year before leaving, whether voluntarily or through deportation.

Permanent Bar for Repeat Offenders

Individuals who have been unlawfully present in the U.S. for over a year or have been deported and subsequently attempt to return illegally may face a permanent bar from reentry. While this is termed “permanent,” affected individuals may apply for a waiver after 10 years. However, without this waiver, they are permanently considered inadmissible to the U.S.

Challenges in Obtaining a Green Card Without Adjustment of Status

Foreign nationals affected by the three-year or 10-year bar often encounter difficulties in securing a green card. Those unable to adjust their status from within the U.S. must apply for an immigrant visa through a U.S. consulate abroad, which can complicate their application.

To address this issue, USCIS allows certain individuals to apply for a provisional waiver while still in the U.S. If approved, they can present this waiver at their consular interview, reducing the time spent outside the country. However, consular officers retain the discretion to accept or reject the waiver.

Waivers of Time Bars: Eligibility and Hardship Requirement

In rare circumstances, a waiver of the three-year or 10-year bar may be granted to individuals who can demonstrate that their U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if they are denied reentry.

• Extreme hardship must be significant, often involving medical or financial difficulties.
• Hardship to U.S. citizen children is not directly considered, except where it indirectly causes extreme hardship to a qualifying spouse or parent.
• Emotional distress alone is insufficient; strong evidence is required to qualify for a waiver.

Given the strict eligibility criteria, seeking legal assistance can be crucial in presenting a compelling waiver application.

Calculating Unlawful Presence

Determining the length of unlawful presence can be complex, particularly in cases where:

• A visa did not specify an exact expiration date.
• The individual was awaiting a decision on a pending application with USCIS.

An experienced immigration attorney can assist in evaluating unlawful presence duration and determining whether any bars or waivers may apply.