Unlawful Presence and Waivers 2017-09-20T16:36:55+00:00

Unlawful Presence and Waivers

In 1996, Congress passed a law which bars certain persons who accumulate a certain period of “unlawful presence” in the U.S., and then left the country, from becoming permanent residents for a period of time unless they first obtain a waiver.

Persons who accumulate 180 days or more of unlawful presence after April 1, 1997, and then left the country, cannot return to the U.S. for 3 years. Persons who accumulate one year or more of unlawful presence after April 1, 1997, anc then left the country, cannot return to the U.S. for 10 years. Persons who illegally return to the U.S. without seeking a waiver, must wait outside the U.S. for a period of 10 years before they can apply for a waiver. The same rule applies to persons who illegally reenter the U.S. after being deported.

Persons who commit fraud or a material misreprensentation are barred from the U.S. for life unless they obtain a waiver.

A waiver may be obtained by submitting form I-601 to the USCIS and demonstrating that the person’s U.S. citizen or permanent resident spouse or parent(s) would suffer “extreme hardship” unless they were granted a waiver.

The definition of what constitutes “unlawful presence” is extreme complex. So is the determination of what is “extreme hardship”.

We hope that the materials linked to below help you understand both concepts.

Consolidation of Guidance Concerning Unlawful Presence (May 6, 2009) – Supersedes Previous Memos

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)

A 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.

• 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.

Guidance on “Period of Stay Authorized by the Attorney General” in Determining “Unlawful Presence (4-02-03)

Superseded by 5-06-09 memo posted above