Exceptions to Unlawful Presence–Do Any Apply to You

By this time, most persons have heard that, after an individual accrues 180 or 365 days of unlawful presence after April 1, 1998, a three or ten year bar is placed against his or her admission to the United States. This bar takes effect only after the alien leaves the United States. For example, a person who overstays their tourist visa for one year, returns to the Philippines and then attempts to re-enter the United States on an employment-based immigrant visa will be “barred” from returning for ten years from the time they left the U.S.

A waiver is available to certain immigrants if they can prove that a lawful permanent resident spouse or parent will suffer extreme hardship if the immigrant is not admitted. Because of this bar, many current applicants for adjustment of status appear to be ineligible for any advance parole. Formerly, advance parole was available to any adjustment of status applicant who wanted to leave the U.S. for business, pleasure or emergencies. However, under the three and ten year rule, even persons with pending adjustment of status applications with an approved advance parole run a risk of being barred upon their re-entry to the United States.

However there are also several exceptions that are often disregarded and may be very helpful in assessing whether an immigrant should even be subject to the unlawful presence bars. The exceptions include: time spent in unlawful presence while still a minor, or under the age of 18; time during which the alien has a bona fide asylum application pending; time during which the alien is a beneficiary of family unity protection; and time spent in violation of an alien’s nonimmigrant visa if he or she qualifies as a battered spouse or child.

In other words, if an alien falls into any of these categories, he or she may never have accrued a single day of unlawful presence. Recently, I had a case where my client’s daughter wanted to go to Europe for her Senior trip. However, she had been in the United States for over ten years Aout of status’ and her mother had only recently naturalized and filed her adjustment of status petition. Since the adjustment application had been filed before she turned 18, the daughter had actually never accrued ANY unlawful presence. She was therefore eligible for advance parole and she was able to go on her Senior trip. The most overlooked of these exceptions is the asylee provision. Many Filipinos filed applications for asylum many years ago, but have since forgotten about them. Many were never even adjudicated, but the alien is still receiving work authorization. In cases like these, it is possible that the alien has never accrued any days of unlawful presence!

The laws surrounding unlawful presence are very complicated and require significant analysis by an immigration expert. Please do not make assumptions or presumptions without first consulting with a recognized and reputable attorney. Remember that, with unlawful presence issues, a small mistake may mean the immigrant could be barred from re-entry for up to ten years. That is too long to wait for making one mistake.