Unlawful presence occurs when a non-U.S. citizen remains in the United States beyond the period of time authorized by the U.S. Immigration Agencies. The term also refers to persons present in the United States without being properly admitted or paroled.
Penalty For Unlawful Presence- The Three & Ten Years Bar
- Any non-U.S. citizen who has been unlawfully present in the United States for more than 180 days but less than one year and voluntarily departs before removal or deportation proceedings will face a three-year bar from admission into the U.S., starting from the date of departure.
- Any non-U.S. citizen who has been unlawfully present in the United States for one year or more and then voluntarily departs or leaves due to removal will face a 10-year bar from admission into the U.S., starting from the departure or removal date.
Note: A non U.S. Citizen begins to accrue unlawful presence in the U.S. after the age of eighteen.
Departure from the United States triggers the three- and ten-year bars after the accrual of unlawful presence. If a non-U.S. citizen accumulates unlawful presence but does not leave the U.S., the three- or ten-year bar won’t apply. The person triggers the bar only when they depart from the United States.
Exiting or departing from the U.S. triggers the unlawful presence bar and puts it into effect. This prevents the approval of their application at the American Consulate or Embassy, as it is a ground for denial. The government then requires the person to remain outside the U.S. for three or ten years, depending on the bar.
Overcoming The Three & Ten Years Unlawful Presence Bar Penalty
The only way to overcome an unlawful presence bar is by filing a hardship waiver at the American Embassy. The waiver must be based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent. Once USCIS approves the hardship waiver, it forgives the three- or ten-year bar. This allows the immigration application process to continue, provided no other disqualifying grounds exist.
However, these waiver applications take months, sometimes even years to adjudicate, resulting in a lengthy waiting period outside the U.S. The process separates the applicants from their families in the U.S. while they wait for the hardship waiver. During this time, they also face exposure to harm in their home countries.
Some applicants, whose form I-130 Petition for Alien Relative has been approved and forwarded to the Embassy in their home country have refused to pursue an immigrant visa abroad, due to the uncertainties of whether or not their waiver application will be approved.
USCIS Proposed Provisional Unlawful Presence Waiver
In March 2012, United States Citizenship & Immigration Services (USCIS) proposed a Provisional Unlawful Presence Waiver. In this process, persons found to be unlawfully present in the U.S. can file a hardship waiver before going abroad for their interview, knowing in advance they will be subject to the unlawful presence bar. This allows applicants to wait mostly in the U.S., which reduces the time they spend separated from their family members.
The provisional unlawful presence waiver process aims to reduce the hardship U.S. citizens experience. This hardship occurs when they are separated from their spouse, children, or parents for extended periods.
The proposed provisional waiver process applies to individuals who can prove extreme hardship to a U.S. citizen spouse or parent. Extreme hardship to a lawful permanent resident spouse or parent will not qualify an applicant under the proposed rule. USCIS will determine eligibility for the provisional waiver. If eligible, USCIS will approve the waiver before the applicant leaves the U.S. for their visa interview.
Individuals who receive an approved provisional unlawful presence waiver must leave the United States to attend their visa interview. This allows the waiver to take effect and grants them a visa.
Benefits That Will Not Transfer From An Approved Provisional Waiver Application
A pending or approved provisional waiver will NOT:
- Provide interim benefits such as employment authorization or advance parole.
- Provide lawful Immigration status.
- Stop the accrual of unlawful presence in the United States.
- Provide protection from removal or deportation.
- Eliminate the need to depart from the United States to seek an immigrant visa at the Consulate or Embassy.
- Guarantee visa issuance or admission to the United States.
USCIS has indicated that in the event of a denial of the provisional unlawful presence waiver, removal or deportation proceeding may result. This means applicants face the risk of referral for removal or deportation when they embrace the benefit of the proposed rule.
USCIS has indicated that the provisional waiver rule is not in effect, and can only take effect after a final rule is published.
Opposition To The Proposed Provisional Unlawful Presence Waiver
Recently, lawmakers have blocked the funds required for the implementation of the proposed rule.
Supporters have argued that the adjudication of such waiver requests can take months or years, placing undue burdens and hardship on families whom are already experiencing a degree of hardship.
Those who oppose have expressed concern that it would encourage relatives of United States citizens to come into the country illegally.
Without the necessary funding for this program, it is doubtful if USCIS will publish a final rule to give effect to the Provisional Waiver of Unlawful Presence.
