By Gregory J. Boult and Nancy E. Miller

Being unlawfully present in the United States is a frightening experience.  It can also have serious, legal ramifications.  However, there is relief for some of those consequences under certain conditions.

Unlawful presence is a legal term that refers to two types of situations.  The first begins upon the expiration of the time permitted by the immigration officer upon admission (when the visa expires).   The second occurs immediately upon entry without being inspected by an immigration officer (entering without papers).

The most common consequences of unlawful presence in the United States are the three and ten-year bars.  An individual who is unlawfully present in the United States for a continuous period of more than 180 days, but less than one year, is barred from re-entering the United States for a period of three years upon his or her departure from the country.  An individual who is unlawfully present in the United States for a continuous period of one year or more is barred from re-entering the United States for a period of ten years upon his or her departure from the country.

These bars only come into effect when one physically leaves the United States.  This is a problem for one who needs to leave to consular process for a green card.  However, it is possible to apply for a waiver before the alien leaves the U.S. to attend their interview.

An intending immigrant can apply for a waiver of the three and ten-year bars if he or she is the spouse or child of a United States citizen or a lawful permanent resident of the United States.  In order to obtain such a waiver, the applicant needs to show that the qualifying spouse and/or parent(s) would suffer “extreme hardship” if the waiver were denied.  Extreme hardship means hardship that is more than the average person or family would suffer.  It is the alien’s burden to prove, through documentary evidence, that the hardship is sufficient for a waiver.

An individual seeking a non-immigrant visa to the United States must also apply for a waiver of the three and ten-year bars.  These waivers do not require a qualifying relative. In determining whether a non-immigrant waiver should be granted, the government will consider the risk of harm to the United States if the individual is admitted; the seriousness of the applicant’s criminal and/or immigration history; and the applicant’s reasons for seeking entry into the United States.  The alien must show that he is not actually an intending immigrant or the waiver will not be granted.

An individual who has been unlawfully present in the United States for an aggregate period of more than one year (meaning when all the time in the U.S. is added together, it adds up to more than one year) or who has been deported and re-enters, or attempts to re-enter the United States without inspection from an immigration officer is barred for life from reentering the United States.

Aliens who have incurred a lifetime bar must wait outside the United States for a period of ten years before they are permitted to apply for a waiver that will allow them to immigrate.  This waiver also requires proof that a USC or LPR parent or spouse will suffer extreme hardship if the waiver is not granted.  However, an alien with a lifetime bar who seeks to enter the United States as a non-immigrant may apply for a non-immigrant waiver at any time.  However, they will need to prove that they are not intending immigrants who are seeking to get around the lifetime bar.

There are two notable exceptions to the three and ten-year bars.  First, an individual does not accrue unlawful presence in the United States until he or she turns eighteen years-of-age.  And second, unlawful presence does not apply to any time spent in the United States prior to April 1, 1997.

For those with a lifetime bar, relief under the Violence Against Women Act may be available.  A VAWA self-petitioner who can show that there is a connection between her battering or subjection to extreme cruelty and her removal, departure from the United States, reentry(ies) or attempted reentries may apply for a waiver of the lifetime bar without waiting ten years outside the U.S.

A non-citizen who may have incurred unlawful presence should seek the advice of an experienced and knowledgeable immigration attorney before taking any steps to change their immigration status to ensure that they know the ramifications of the actions they are considering.

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