I-601 Waiver Attorney: Unlawful Presence Waivers

Clients and our Blog visitors often ask me about Waivers. What is a waiver, is it a form of punishment, will it cure any Immigration violation? Certain violations of Immigration Law will make the applicant eligible for a waiver.

The most common violation is unlawful presence, and there is a waiver for this violation.

The statute, itself, defines unlawful presence as an individual who is “present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” Additionally, the inadmissibility bar only applies to those individuals who have been in the United States and accrued unlawful presence after April 1, 1997. For purposes of INA §212(a)(9)(B)(i), unlawful presence is calculated for any unauthorized time during a single stay in the United States. Thus, if a person accrues 179 days of unlawful presence (one day short of the 180-day threshold) and departs the United States only to later reenter the United States and accrue an additional 179 days of unlawful presence, the person is not subject to the three-year bar.

In determining if the unlawful presence bar is applicable, the stay must not have been authorized by the attorney general. Some instances where unlawful presence does not accrue include:
§ Individuals granted voluntary departure;
§ Individuals not given an I-94;
§ Those who are on temporary protected status;
§ Those with pending adjustment applications;
§ Those granted withholding of removal;
§ Individuals granted a stay of removal or deferred action; and
§ Those granted cancellation of removal.

There are also a number of exceptions set out in the statute. These exceptions include minors, asylees, those subject to family unity protections, battered women and children, and victims of severe forms trafficking.

Sometimes a person will be in unlawful status, but not necessarily trigger unlawful presence. While these two terms are interrelated, they are not synonymous. Unlawful status results when a person violates the terms of the status given to him or her by the U.S. Department of Homeland Security (DHS), while unlawful presence relates to time in the United States beyond any authorized stay or being present in the United States without being admitted or paroled.

An example of how these two terms interrelate is with foreign students who are admitted for “duration of status” as F-1 nonimmigrants. If the foreign student subsequently engages in unauthorized employment, he or she is in unlawful status for violating the terms of his or her visa. However, if neither Citizenship and Immigration Services (USCIS) nor an immigration judge (IJ) makes a finding that the student was out of status, he or she will not accrue any unlawful presence.

The difficulty for most unlawful presence immigrants comes from the “unlawful presence” bar to permanent residence. That bar applies to most individuals who leave the United States after having been here more than 180 days. If the immigrant entered without inspection, he must return home for his green card interview and a 10-year bar applies. U.S. Citizenship and Immigration Services will waive the bar if the Immigrant can prove that a U.S. citizen Spouse or permanent resident parent will suffer extreme hardship if the family is separated.

Determination of unlawful presence is a complex area of law, we suggest that you consult an experienced immigration attorney when facing with such an issue.