Unlawful Presence & Waivers
Since April 1, 1997, foreign nationals who are present in the United States without government authorization are unlawfully present. This rule can apply to those who entered without visas or those who crossed borders without approval. Most importantly, it is a rule of “inadmissibility” which makes a visa applicant ineligible for a visa and ineligible to enter the United States.
The unlawful presence rule is activated once a foreign national leaves the U.S. and denies him for re-entry for three years (3-year bar) or ten years (10-year bar).
For example, Louis entered the U.S. with a visitor visa which expired August 5, 2014, after which, he is no longer allowed to stay in the U.S. If he does not leave the United States, he accumulates unlawful presence for each day he remains. If Louis leaves the U.S. after 180 days of unlawful presence, he will be denied entry into the United States for at least three (3) years. If Louis leaves the U.S. after 365 days of unlawful presence, he will be denied entry into the United States for at least 10 years.
Here are some general facts to know about the unlawful presence rule:
- Waivers are available under certain circumstances, including the provisional waiver which allows the applicant to apply for approval before leaving the U.S. If a waiver is approved, the three or ten year bars do not apply. Get more details about provisional unlawful presence waivers.
- A visa or green card applicant who does not have legal immigration status (except spouses, parents, and children under 21 of U.S. citizens who entered government authorization) must leave the U.S. to complete visa processing at the U.S. embassy. As a result, the unlawful presence rule may apply.
- F-1 students and J-1 exchange visitors do not accrue unlawful presence, even if they violated the terms of their visas, e.g. no longer in school or working in the exchange program.
- Generally, unlawful presence starts after the authorized stay on the I-94 expires so noncompliance with the visa requirements does not create unlawful presence. For example, an H-1B worker loses his job on October 1, 2014 and is no longer authorized to stay in the U.S. However, his I-94 does not expire until September 30 2015; therefore, he does not accumulate unlawful presence until October 1, 2015. If he leaves the U.S. before that date, he is eligible for a new H-1B visa or other visa.
The unlawful presence rule is very complicated and requires an immigration attorney’s analysis to determine whether it applies to a visa or green card applicant. Any visa applicant who is or has been present in the U.S. without an unexpired visa should meet with an attorney before applying for a visa or green card.
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