Consequences of Unlawful Presence in the United States

Unlawful presence in the U.S. can have serious consequences, including the imposition of time bars on re-entry to the country. Individuals who depart the United States after being unlawfully present for a specific period face certain time bars under Section 212(a)(9)(B) of the Immigration and Nationality Act. The Act imposes a three-year bar for those who depart after staying unlawfully for over 180 days but less than one year. Individuals who remained in the country unlawfully for one year or more, a ten-year bar.

The time bars have profound consequences for individuals and their families. The time bars hinder those affected from returning to the United States for work, study, or family reasons. Sometimes, the time bars could be waived if the individual can prove extreme hardship to a qualifying U.S. citizen or lawful permanent resident family member.

You should be well informed about your legal status in the United States. You should also address any potential problems that may occur. This can include seeking legal advice and guidance and exploring options for obtaining lawful immigration status.

Unlawful Presence Under Immigration Law

Unlawful presence, as used in U.S. immigration law, describes an individual’s stay in the country without proper authorization or beyond the expiration of his/her authorized period of stay. An individual who enters the country without inspection, overstays his/her visa or otherwise violates his/her immigration status is considered unlawfully present in the country.

Unlawful presence results in severe consequences. This includes the possibility of being barred from returning to the United States. Once barred, your ability to obtain lawful status in the future will suffer.

Under the country’s immigration law, non-citizens unlawfully present for more than 180 days but less than one year but later depart could be subject to a three-year bar from re-entering the country. Individuals who are unlawfully present for one year or more and then leave could be subject to a ten-year bar from re-entering the country.

Details on The Time Bars for Unlawful Presence

The three and ten-year bars are a ground of inadmissibility that apply to people outside the U.S. and those inside the U.S. but do not have a right to apply for their green card here. The bars make it difficult or impossible for the noncitizen to obtain a lawful status or return to the country after leaving.

However, the immigration law provides certain exceptions and waivers that can help individuals subject to unlawful presence time bars. They are:

• Exception for minors — Noncitizens under 18 at the time of their unlawful presence may not be subject to the time bars.
• Exception for asylum seekers — Noncitizens applying for or appealing a grant of asylum may be exempt from the time bars.
• Exception for victims of crime — Noncitizens who are victims of certain crimes and who cooperate with law enforcement may be eligible for a U visa, which can waive the time bars.
• Exception for victims of trafficking — Noncitizens who are victims of human trafficking may be eligible for a T visa, which can waive the time bars.
• Exceptions for family members of American citizens — Non-citizens who are spouses, parents, or children of American citizens could be eligible for a waiver of the time bars. This exception only applies if he/she can show that their American citizen relative would suffer extreme hardship if they were not allowed to return to or stay in the country.
• Exceptions for family members of lawful permanent residents — Non-citizens who are spouses or children of lawful permanent residents could be eligible for a waiver of the time bars. They have to prove that their lawful permanent resident relative would suffer extreme hardship if they were not allowed to return to or stay in the country.

Note: These exceptions and waivers are subject to certain requirements and limitations.

As for the waivers, you can only apply for them before leaving the country. The United States Citizenship and Immigration Services (USCIS), however, only allows individuals who fulfill the waiver requirements.

Individuals Eligible for Provisional Waiver of Three- or Ten-Year Time Bar

The provisional waiver of the three- or ten-year time bar allows certain eligible noncitizens to apply for a waiver of the time bars before they depart the country for their consular interview abroad. This helps reduce the time the noncitizen spends separated from their family and reduces the risk of being stuck abroad.

The provisional waiver process allows certain eligible individuals to apply for a waiver of the unlawful presence bar before departing the United States for their consular interview. The waiver application is filed on Form I-601A, Application for Provisional Unlawful Presence Waiver.

To qualify for the provisional waiver, you need to meet these criteria:

• You have to be in the country in person when you apply.
• You have to be 17 years or older.
• You should be the beneficiary of an approved immigrant visa petition — As a non-citizen, you must have an approved immigrant visa petition. For example, is a family- or employment-based visa petition (Form I-130 or I-140).

Form I-130, Petition for Alien Relative, allows American citizens or lawful permanent residents (LPRs) to petition a foreign national who is a close relative to come to the United States to live permanently. American citizens and LPRs use this form to petition for their spouse, parent, sibling, or child to obtain a visa. Once the I-130 is approved, the foreign national can apply for a visa through the National Visa Center.

Employers use Form I-140, Immigrant Petition for Alien Workers, to petition foreign workers to work permanently in the country. The form is typically used for skilled workers in certain occupations, including professionals with advanced degrees, individuals with exceptional arts or sciences abilities, and multinational managers and executives. Once the I-140 is approved, the foreign worker can apply for a visa.

• You must demonstrate extreme hardship to a qualifying U.S. citizen, lawful permanent resident spouse, or parent. Your spouse or parent would suffer extreme hardship if you were not allowed to return to the United States.
• You should be inadmissible only based on unlawful presence in the United States. You should not have any other grounds of inadmissibility that require a waiver. Some of the other grounds for inadmissibility include the following:
  • Health-related grounds — Individuals with an infectious disease of public health significance, a physical or mental disorder that poses a threat to the safety of others, or who are drug abusers or addicts.
  • Criminal grounds — People convicted of crimes involving moral turpitude (CIMT), drug offenses, or multiple criminal convictions are deemed inadmissible.
  • Security and terrorism-related grounds — Persons who are a security risk or have engaged in terrorist activities are inadmissible. Additionally, if you are associated with terrorist organizations, you do not qualify for readmission.
  • Public charge — People likely to rely on public assistance are marked as inadmissible and would be denied reentry.
  • Labor certification and immigration status violations — Individuals who have violated immigration laws or been found to have engaged in unauthorized employment.
  • Misrepresentation and fraud — Applicants who made false claims or provided fraudulent documents or information to immigration authorities are inadmissible.

When You Could be Subjected to a Permanent Bar

An individual is subject to a permanent bar on admission to the country if he/she accrued more than one year of unlawful presence, departed, and then attempted to re-enter or re-entered the country without being admitted or paroled. Under the permanent bar, the individual is permanently inadmissible unless they qualify for a waiver of the permanent bar.

The waiver is available only to certain immediate relatives of U.S. citizens. You must also demonstrate extreme hardship to your qualifying U.S. citizen spouse or parent if you cannot return to the country.

The accrual of unlawful presence and the imposition of the permanent bar can have significant consequences for future immigration applications. These consequences affect applications for nonimmigrant visas, immigrant visas, or adjustment of status to lawful permanent residents.

Note: Accrual of unlawful presence occurs when a non-U.S. citizen remains in the country beyond the authorized period of stay granted by the U.S. government. Alternatively, accrual is also evident when the non-citizen enters or remains in the country without proper authorization.

Extreme Hardship

Extreme hardship is a legal standard used in U.S. immigration law to determine whether a waiver should be granted. This assessment of waiver applications is for certain cases where the applicant would otherwise be inadmissible or ineligible for a particular immigration benefit.

Generally, extreme hardship is a hardship that exceeds normal emotional and financial difficulties expected as consequences of separation or relocation. The hardship must be both extreme and unusual. It also must be based on factors beyond the control of the qualifying relative, the U.S. citizen, or the waiver applicant's lawful permanent resident family member.

Examples of factors considered in evaluating extreme hardship can include, but are not limited to:

• The health and medical needs of family members — If the family member has a serious or chronic medical condition that requires ongoing care or treatment. You should provide medical reports, doctor's letters, and other medical evidence to show that the qualifying relative has a medical condition requiring ongoing care or treatment unavailable in the applicant's home country.
• The educational needs of family members — If the family member is a minor pursuing a degree or advanced training. Make sure to attach evidence to demonstrate the unique educational or employment opportunities available to the qualifying relative in the country and the potential negative impact of the applicant's absence on those opportunities.
• The financial impact of separation or relocation — If the qualifying relative relies on the individual seeking the waiver for financial support. Evidence of a devastating financial impact includes proof of the qualifying relative's income and expenses, as well as evidence of the applicant's income and potential for employment.
• Family members face cultural, linguistic, or social adjustment difficulties if forced to relocate to a foreign country.

Extreme hardship is a high standard to meet. Each case is evaluated on its own unique set of circumstances.

Loopholes in the Unlawful Presence Time Bar Law

Some gaps in the immigration laws have allowed non-citizens to avoid the implications of the unlawful presence time bar law, namely:

• The law came into effect in April 1997. Before that date, there was no penalty for accruing unlawful presence. However, it is essential to note that any period of unlawful presence after April 1, 1997, will count toward the accrual of unlawful presence. It could trigger the 3/10-year bar on reentry to the United States. Additionally, individuals in the United States before April 1, 1997, could still be subject to other grounds of inadmissibility or deportation, depending on their circumstances.
• You do not accrue unlawful presence for the three and ten-year bars while you are under 18 years old. However, you accrue it for the permanent bar — Time spent in the United States while under 18 does not count towards the 3/10-year bars on reentry. This is due to a provision in the law known as the "age-out" provision. The provision provides that individuals under 18 at the time they accrue unlawful presence are not subject to the 3/10-year bars.

However, it is necessary to note that time spent in the country while under 18 could count towards the permanent bar on reentry. This applies to individuals who have accrued more than one year of unlawful presence in the country and then depart and attempt to reenter the country without proper authorization.

• The law only applies to “continuous” presence (except for the permanent bar), so you can ignore some months here and there as long as you did not stay for 180 days or more in one go — Unlawful presence is based on continuous presence in the country, except for purposes of the permanent bar, which is triggered by a single period of unlawful presence of more than one year.

Any period of unlawful presence that is less than 180 days is generally not counted towards the 3/10-year bars on reentry. However, any period of unlawful presence that exceeds 180 days but is less than one year will trigger a three-year bar on reentry. This is the case if the individual departs the country, and any period of unlawful presence that exceeds one year will trigger a ten-year bar on reentry.

Note: Even short periods of unlawful presence can significantly affect an individual's ability to obtain legal status in the United States.

Fraud and Misrepresentation Can Result in Permanent Inadmissibility

Fraud and misrepresentation can severely affect your ability to enter or remain in the country. Under U.S. immigration law, individuals who have committed fraud or made willful misrepresentations concerning any immigration benefit or application are deemed permanently inadmissible to the United States.

Examples of fraud or misrepresentation that can trigger permanent inadmissibility include:

• Falsifying or misrepresenting information on an immigration application or supporting documents.
• Presenting fraudulent documents to immigration officials.
• Providing false information during an immigration interview or hearing.
• Engaging in marriage fraud, for example, entering into a marriage solely to obtain an immigration benefit.
• Falsely claiming U.S. citizenship or using fraudulent documents to prove U.S. citizenship.

Even if you committed fraud or misrepresentation many years ago, the act would have consequences on your ability to enter or remain in the country.

How an Immigration Attorney Can Help 

An experienced immigration attorney can help individuals handle the consequences of unlawful presence in the United States in several ways, including:

• Waiver applications — If you are subject to the three and ten-year bars on reentry or the permanent bar, an attorney can help you prepare and file a waiver application to seek relief from the bars.
• Adjustment of status — An attorney could help you adjust your status to obtain lawful permanent residence (a green card) in the United States. You can apply for an adjustment even if you have accrued unlawful presence. This is possible if you are eligible for a waiver or other form of relief.
• Deferral of removal — An immigration attorney can help you obtain a deferral of removal (also known as deferred action). This removal or deferral allows you to remain temporarily in the United States without being deported. It is available in certain circumstances, like if you are a victim of a crime or have humanitarian reasons for staying in the country.
• Representation in removal proceedings — If you are in removal proceedings, an immigration attorney can represent them and help them fight the removal charges. Representation involves arguing that you are eligible for relief from removal or contesting the government's evidence against you.
• Counseling and guidance — The potential of deportation or being denied re-entry is harrowing. Immigration attorneys provide valuable counseling and guidance to individuals dealing with the consequences of unlawful presence in the United States. They can help individuals understand their legal options and make informed decisions about proceedings.

Find an Los Angeles Immigration Attorney Near Me

An experienced immigration attorney can help you navigate the complex and often confusing area of immigration law. He/she will also work to mitigate the consequences of illegal entry into the United States. Therefore, do not hesitate to call the California Immigration Attorney for assistance. Contact our team at 424-789-8809 for a case evaluation.