What is unlawful presence in the United States?

Travelers or visitors are considered to be in unlawful presence in the US if they were admitted into the US legally through a non-immigrant visa for either business, study, or pleasure but they continued to stay in the US after their non-immigrant visa expired.
Travelers or visitors to the US are also considered to be in unlawful presence in the US if they were not admitted but have entered the US illegally without a visa or on a fake visa and they continued to stay in the US even without the appropriate legal travel documents.

What are the consequences of unlawful presence in the US?

  1. An alien whose visa has expired but who continues to stay in the US becomes a deportable alien. This means that if the alien does not voluntarily leave the US and is apprehended, the alien will be removed from the US.
  2. The continuous stay of an alien in the US despite the expiration of a non-immigrant visa and the failure to request an adjustment of status or renewal of the non-immigrant visa will start the accrual of the 180-day period of unlawful presence for which the alien will be banned from re-admission into the US.
  3. An alien whose unlawful presence in the US has exceeded 180 days will be removed from the US and will be denied re-admission into the US for three years. This means that no application for visa from the alien will be processed for three years.
  4.  An alien whose unlawful presence in the US has exceeded 1 year will be removed from the US and will be denied re-admission into thte US for ten years. This means that no application for visa from the alien will be processed for ten years.
  5. An alien who has been removed from the US but tries to enter the US without being admitted and accrues unlawful presence for a period for one year or more will be inadmissible into the US.
  6. An alien who has accrued 180 days of unlawful presence in the US and voluntarily departs the US will be barred from admission into the US for three or ten years.
  7. An alien who has accrued more than one year of unlawful presence in the US but petitions for adjustment of status will stop the period of unlawful presence from running. His presence during the pendency of the petition for adjustment of status will be deemed authorized.

What remedies are available to a person who has triggered the 3-year or 10-year bar of inadmissibility into the US because of unlawful presence?
The alien who has become inadmissible into the US because of incurring unlawful presence for more than 180 days or more than one year, and has triggered the 3-year or 10-year ban may request for a WAIVER of the bar.
The alien may also appear at a port of entry and ask for a PAROLE. The parole will allow the alien to physically enter the US without having been admitted. Thus he or she will not incur unlawful presence.

Who can apply for a waiver of the unlawful presence bar?

  1. An alien applying for a non-immigrant visa who has also secured an advance permit to enter from the Customs and Border Patrol.
  2. Aliens who are legal spouses, sons, daughters or fiances (ees) of a US citizen or a legal permanent resident
  3. Asylees or refugees applying for adjustment of status

What are the requirements for the waiver?
The alien must prove that he or she is inadmissible because of unlawful presence.
The alient must prove that he or she is ineligible to apply for adjustment of status.
The alien must prove that extreme hardship on the US citizen or legal permanent resident will result from denial of entry of the spouse, son, daughter, or fiance (ee), or on the asylee or refugee.
The alien must prove that if the application is approved, the approval will only be temporary as the alien will complete the application before the US Consulate or Embassy abroad.

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