Unlawful Presence 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
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.
The advice that I give in each answer or legal is not intended to take the place of an in person consultation. A complete answer takes an in depth interview. After all, it is a life that is at stake. If you are in another city that I do not service ask me and I might be able to recommend you an attorney there. In general, in Houston, I recommend Adan Vega or Bruce Coane, Specialists. In Dallas I recommend Richard Fernandez or Yong Wood highly skilled and experienced.
It all depends on whether your I-94 was stamped with a D/S. If it was, then you do not begin to accrue unlawful presence unless and until an immigration officer or an immigration judge has found you to have violated your status. However, this does guarantee that you will not have problems when you seek re-entry after a travel abroad.
Unlawful presence begins when the person is out of status, or for F-1 students, when the government makes a determination that the person is out of status. Bars begin when the person has 180 days of unlawful presence.
J Charles Ferrari
Eng & Nishimura
The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship.
Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.