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Unlawful Presence #1 by Thomas Esparza, Jr. and Jacqueline L. Watson Immigration Specialists

Posted by attorney Thomas Esparza

The day you arrived in the United States illegally, you begin acquiring “unlawful presence". If you entered the

United States with a nonimmigrant visa, visa waiver or border-crossing card, you were allowed to stay here until a specific time indicated

on the 1-94 issued by the United States Citizenship and Immigration Services (USCIS). After that time frame expired, you begin acquiring

unlawful presence.

Three Year Bar There is a penalty if you acquire more than 180 days but less than a year of unlawful presence and then leave the United

States. By leaving the United States, you will not be able to return legally for three years.

Ten Year Bar There is a harsher penalty if you have more than a year of unlawful presence and then leave the United States. When

youleave the United States, you will not be permitted to return legally for ten years.

Waiver of the Three and Ten Year Bar There is a waiver of the three and ten year bars but not everyone qualifies for it. You must show that

your U.S. citizen or permanent residence spouse or parent would suffer extreme hardship if you are not granted the waiver. You cannot get

a waiver of the three or ten year bar on the basis of the United States citizen children. The USCIS and most consulates are granting many

but not all of these waivers. In addition, it takes 6-12 months to get a decision on the waiver.

What to do? If you are eligible to immigrate through the U.S. consulate because a family member has petitioned for you, you should

not stay illegally in the United States for more than 180 day. On the other hand, if you are eligible to become a permanent resident here in

the United States, you should not leave the country before you get your green card. Talk to an immigration specialist to find out the best

thing for you to do. However, if you have already been here illegally for more than 180 days, consult an immigration lawyer about your

specific case. You might never be able to return.

Permanent Bar If you have accumulated more than one year of unlawful presence after April 1, 1997, leave the Unites States, then

attempt to enter the country illegally, you are subject to a permanent bar. This is so even if you successfully reentered the United States

illegally. The permanent bar means that you will never be able to reenter the United States legally. A waiver is available only after you have

stayed outside the United States for ten years. If you have been living illegally in the United States for more than one year, you should not

leave and attempt to return illegally.

Additional resources provided by the author

Thomas Esparza and Jaqueline L. Watson, Board Certified Specialist Immigration and Nationality Law, Texas Board of Legal Specialization. 1811 South First St. Austin, Tx.

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