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Unlawful presence under U.S. immigration law is defined as the period of time that a person is in the United States without being admitted or paroled, and are not in a “period of stay authorized by the Secretary [of Homeland Security].” A person accrues unlawful presence if they are in the United States without being admitted or paroled or if they have remained after the expiration of their authorized period of stay. The law provides exceptions for accrual of unlawful presence to the following: minors (under 18), asylees, family unity beneficiaries, battered spouses and children, and victims of severe forms of trafficking. In these cases, the standard rules for unlawful presence accrual do not apply. This definition of accrual of unlawful presence does not include any time period accrued before April 1, 1997. This is because on this date the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) went into effect, which added unlawful presence inadmissibility. Thus, a person who was unlawfully present in the U.S. for many years but left on or before September 27, 1997 (within 180 days after April 1, 1997) they will not be inadmissible for any unlawful presence accrual consequences, such as a three or ten-year ban.

For those who have accrued unlawful presence, certain consequences are triggered when they depart from the U.S. For example, a 3-year ban is triggered when people who are unlawfully present in the United States for a continuous period of more than 180 days but less than one year voluntarily depart the U.S. A person is inadmissible to the United States for a period of three years from your date of the departure. A 10-year bar is triggered when people who are unlawfully present in the United States for a continuous period of one year or more leave the U.S. In this case, a person must wait 10 years from the date of departure/removal before being eligible to apply for admission to the United States. Furthermore, a person can trigger a permanent bar if they have stayed in the U.S. unlawfully for over a year, departed/were removed from the U.S., and then tried to enter the U.S. unlawfully again.

In some cases, a person can avoid triggering unlawful presence bars through Adjustment of Status. For example, if they entered lawfully, overstayed their visa, and have never left the U.S., they can apply for an Adjustment of Status through certain relatives such as a U.S. citizen spouse. In this case, they do not even need to apply for a waiver since they have never left the U.S. (never triggering the bar).

When a person does not qualify for Adjustment of Status, they may instead be eligible to apply for a waiver of unlawful presence. For the waiver, an I-601A is filed, and they must prove that their U.S. citizen or legal permanent resident spouse or parent(s) would suffer extreme hardship unless this waiver was granted. In this case, an immediate or preference relative must file an I-130 petition (the Petition for Alien Relative) on their behalf and get that approved. From there, they must submit the waiver for provisional unlawful presence (I-601A), and if it is approved, then they will need to leave the U.S. and go to the Consulate in their country of origin for an interview. However, they can stay in the United States for the period of time up until the interview. Now, if the waiver is denied, they can still stay in the United States, given that they try to file the provisional waiver again. It is important to note that to be eligible for this waiver, the only ground of inadmissibility must be unlawful presence. It must also be shown that the U.S. citizen or legal permanent resident spouse or parent(s) will suffer extreme hardship if the unlawful presence is not waived.

Please contact the Shulman Law Group if you have accrued unlawful presence and are seeking permanent legal residency. We can help guide you along every step of the way so that you feel confident about your immigration status.