When an individual asks for permission to enter the United States, serious problems may arise if he or she has been deemed inadmissible for violating immigration laws. One major basis for inadmissibility is unlawful presence in the United States. Unlawful presence issues are complicated and understanding them is critical to the success of an immigration case.
U.S. immigration law states that an individual is “unlawfully present” if he or she remains in the United States after the expiration of a period of authorized stay or is present in the United States without being admitted or paroled. Common examples of these include overstaying a visitor’s visa or entering the country through an illegal border crossing.
As of April 1, 1997, persons who have been unlawfully present in the United States for 180 days but less than one full year are barred from re-entering the United States for 3 years. Individuals who have been unlawfully present for more than a year are barred from reentry for 10 years. Under these “3-year” and “10-year” bars, the unlawful presence must be continuous and uninterrupted. Any time spent in the country prior to April 1, 1997 is not counted.
There are certain statutory exceptions to unlawful presence. Children under 18, asylum applicants, beneficiaries of Family Unity protection (under the Immigration Act of 1990), and battered women and children do not accrue unlawful presence. Also, in certain circumstances the 3-year and 10-year bars may be removed by obtaining a waiver. One such waiver is for extreme hardship to certain relatives who are either U.S. citizens or lawful permanent resident. A new provisional waiver program beginning March 4, 2013 allows some individuals to apply for and obtain a waiver while waiting in the United States.
Another important bar is the permanent unlawful presence bar. The bar applies to an individual who entered the United States without authorization, stayed for one year or more, departed the country, and later reentered or attempted to reenter without authorization. The permanent bar also applies to individuals who have been ordered removed by an immigration judge and then reentered or attempted to reenter the United States. An individual subject to the permanent bar must first spend 10 years outside of the United States. Once the ten years have elapsed, the alien must also first submit a waiver request before the government will consider any visa applications.
The one-year period of unlawful presence for the permanent bar is calculated by the total number of days spent in the United States, not the alien’s continuous presence. It is important to remember that some individuals, including children, may be subject to the permanent bar even though they are not subject to the 3-year and 10-year bars.