Can Unlawful Presence Bars Be Waived in the United States?

Unlawful presence bars can have significant implications for immigrants attempting to return to the United States or apply for legal status. These serious immigration penalties can create long-term family separation and uncertainty. However, under certain circumstances, it is possible for unlawful presence bars to be waived. Understanding federal immigration law is crucial during this time, so do not hesitate to contact a skilled New York City immigration waivers lawyer for more information today.

What is an Unlawful Presence Bar?

“Unlawful presence” refers to being in the United States without a valid immigration status. This includes entering the country without inspection, overstaying a visa, or violating the terms of your status. Any time spent in the country without authorization is considered unlawful presence, and the USCIS (United States Citizenship and Immigration Services) calculates this time on a day-by-day basis.

When you accrue a certain amount of unlawful time in the United States, leaving the country can trigger a bar. For example, if you are present in the country without legal status for 180 days or longer and then leave the U.S., you could be barred from returning for 3 years. Unlawful presence for one year or more triggers a 10-year bar upon your departure from the country.

Can Unlawful Presence Bars Be Waived in the U.S.?

Under certain circumstances, it is possible for an unlawful presence bar to be waived. There are typically two types of waivers available: the Provisional Unlawful Presence Waiver and the traditional Waiver of Grounds of Inadmissibility.

Immigrants who are physically present in the United States and eligible for consular processing, those with approved immigrant petitions, and those without additional inadmissibility issues may be eligible to file for a provisional waiver. You can submit Form I-601A with evidence of how your U.S. citizen or lawful permanent resident relative will face hardship without your presence in the country. If approved, you can then leave the country to attend your consular interview without triggering a bar. If your visa is approved and you are not inadmissible for other reasons, you can return to the United States.

If you are outside of the United States, you may be able to file Form I-601, the Application for Waiver of Grounds of Inadmissibility. This process can be used to overcome a variety of inadmissibility grounds, including immigration violations like unlawful presence. If you can demonstrate that your relative would face extreme hardship if you are unable to enter the country, the waiver may be approved.

Immigration law can be incredibly complex, so it is important that you fully understand your legal rights and options. Consult with a knowledgeable attorney at The Law Office of Cheryl R. David today for more information and legal counsel.