Navigating the complexities of unlawful presence in the United States often leads to significant worry, especially concerning the automatic three-year or ten-year reentry bar triggered by departure. This reality can be highly disruptive for families. However, certain individuals may qualify for an unlawful presence waiver, a critical tool that allows them to pursue lawful permanent resident status despite prior periods of unlawful presence. Continue reading for a clear breakdown of the eligibility requirements, the waiver application process, and guidance on when to consult an experienced Essex County Immigration Attorney.
What Are Unlawful Presence Bars?
The Immigration and Nationality Act (INA) outlines three primary consequences for unlawful presence, the most common being the three-year and ten-year reentry bars. These bars are activated upon a person’s departure from the U.S. after they have accrued a specific amount for unlawful presence. The three-year bar applies to individuals who have accrued more than 180 days but less than one year of unlawful presence before departing. The ten-year bar, on the other hand, applies to individuals who accrued one year or more of unlawful presence before departing.
A permanent bar applies to those who have accrued more than one year of unlawful presence (continuously or cumulatively), departed the U.S., and subsequently re-entered or attempted to re-enter without official admission (or re-entered after a prior removal order). Unlike the three- or ten-year bars, the permanent bar usually requires the individual to spend ten years outside of the U.S. before they are permitted to apply for permission to return, typically by filing Form I-212. It is important to understand that this bar cannot be waived by standard unlawful presence waivers.
Do Waivers Exist for Unlawful Presence Bars?
A waiver for the three-year and ten-year bars is possible under U.S. law, but it requires demonstrating that denying admission would cause “extreme hardship” to a qualifying relative who is a U.S. citizen or a Lawful Permanent Resident (LPR), typically a spouse or parent. It is vital to note that hardship to the immigrant or to U.S. citizen children alone is insufficient to meet this specific waiver standard. Eligibility largely depends on having the correct qualifying relative and strong proof of extreme hardship.
However, not all inadmissibility grounds are waivable. For instance, the permanent bar usually requires a mandatory period of time outside the U.S. before an applicant can even become eligible. Furthermore, individuals with other grounds of inadmissibility, such as those involving fraud, certain criminal convictions, or previous removals, may need separate waivers or might be ineligible for the provisional waiver (I-601A).
While unlawful presence bars present a significant hurdle, a qualified attorney at the Law Offices of Christopher T. Howell, Esq., can help you navigate the waiver process. Connect with our firm today to schedule a consultation.