Unlawful Presence and the Overstay Bars

Unlawful Presence and the Overstay Bars

People become inadmissible if they are “unlawfully present” in the U.S. for six months after April 1, 1997, subsequently leave the U.S. and then seek admission by applying for an immigrant or nonimmigrant visa from overseas. Such persons are subject to a three-year waiting period before they can return to the U.S.; the period is ten years if they were unlawfully present for one year or more after April 1, 1997.

This bar does not apply to someone who stays in the U.S. to Adjust Status—so anyone eligible to adjust status should take advantage of this and not leave the U.S. until they get their green card.

What is Unlawful Presence?

If you have no choice but to apply for your green card over-seas, through consular processing, it will become very important to calculate exactly how many of the days you spent in the U.S. were “unlawful.” It is actually easier to say what unlawful presence isn’t than what it is. You will not be found to be unlawfully present for purposes of the three- and ten-year bars:

• for time spent under the age of 18
• for time spent as a bona fide asylum applicant (including time while administrative or judicial review is pending), unless you were employed without authorization
• for time spent under Family Unity protection
• for time spent as a battered spouse or child who shows a substantial connection between the status violation or unlawful entry and the abuse, or
• for time spent after you were lawfully admitted but were waiting for a USCIS decision on a valid and timely filed application for change or extension of status (as long as you did not work without authorization), but only up to a maximum of 120 days.

Furthermore, the following persons present in the U.S. will not have time counted as unlawful presence:

• persons with properly filed applications for adjustment of status who have their applications pending with the USCIS
• aliens admitted to the U.S. as refugees
• aliens granted asylum
• certain aliens granted withholding of deportation/removal
• aliens present under a current grant of Deferred Enforced Departure (DED)
• certain aliens under a current grant of Temporary Protected Status (TPS), and
• certain Cuban-Haitian entrants.

Special Rules About Unlawful Presence

As you work on counting up your unlawful presence, you’ll also need to factor in the following rules:

• No period of time prior to April 1, 1997, counts toward unlawful presence for overstay bar purposes.
• Periods of unlawful presence are not counted in the aggregate for purposes of the three and ten year bars—in order words, you have to be present for a block of time which constitutes six or 12 months; the USCIS will not add up three months during one stay and three months during another stay to find that you were unlawfully present for six months.
• An alien admitted for “duration of status” (“D/S”) (such as a student or exchange visitor) will begin to accrue unlawful presence only if either an immigration judge finds the alien has violated status and is deportable, or, the USCIS, in the course of adjudicating an application determines that a status violation has occurred.
• An alien admitted until a specified date will begin to accrue unlawful presence either when the date on the I-94 (or any extension) has passed, or if the USCIS or an immigration judge makes a finding of a status violation, whichever comes first.
• Where the unlawful presence determination is based on a USCIS or immigration judge finding of a status violation, the unlawful presence clock starts to run from the date determined to be when the status violation began.
• A grant of voluntary departure (V/D) constitutes a period of authorized stay. This includes the period between the date of the V/D order and the date by which the alien must depart. If the alien fails to depart by the date specified in the V/D order, the unlawful presence clock starts running.

Aliens Not Considered to Be in a Period of Stay

The following persons are unlawfully present for overstay bar purposes:

• aliens under an order of supervision
• aliens granted deferred action status
• aliens with pending applications for cancellation of removal
• aliens with pending applications for withholding of
• aliens issued voluntary departure prior to, during or
following proceedings
• aliens granted satisfactory departure, and
• aliens in federal court litigation.

Waiver of Three or Ten-Year Waiting Periods

There is a waiver available for persons who are the spouse or son or daughter of a U.S. citizen or permanent resident, if the applicant can show that being kept out of the U.S. for three or ten years would cause the U.S. citizen extreme hardship. Note that hardship to the immigrant applicant doesn’t count. Extreme hardship usually means more hardship than is normally experienced by family separation; economic hardship is not usually sufficient to meet this requirement. These waivers are hard to get; therefore call our office to speak with an experienced immigration attorney for help.

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