Unlawful Presence and Waivers

By Attorneys Robert L. Reeves and Katherine L. Curtis

Illegal presence in the United States can affect a person’s ability to obtain permanent residence in the United States or obtain an immigrant visa at a consulate or embassy abroad.

People who entered the United States lawfully on a visa, but who are now here unlawfully because they overstayed that visa, can obtain a green card without traveling to a foreign country, obtaining a waiver, or paying a fine if they are the spouse, minor child, or parent of an adult United States citizen or are considered to be a special immigrant. People unlawfully present in this country, who do not fit within the above-referenced category, can also obtain a green card if a family based visa petition or an employment based labor certification was filed for them on or before April 30, 2001, provided they pay a $1,000 fine. However, all other people unlawfully present in the United States will need to return to a consulate or embassy abroad in order to obtain a green card. If those people have remained in the U.S. for an extended period illegally, they will be required to be eligible for and be granted a waiver from the United States Citizenship and Immigration Services (USCIS) before reentering.

A person who has been residing in the United States unlawfully for more than 180 days but less than one year is barred from reentering the United States for a period of three years unless they obtain a waiver, and if such a person has been residing in the United States unlawfully for a year or more, they are barred from reentering for ten years unless a waiver is obtained.

It is important to note that people who resided unlawfully in the United States for a year or more and who departed the United States, must continue to remain outside the United States until a waiver is granted. If they depart the United States and attempt to reenter or succeed in reentering the United States illegally thereafter without obtaining a waiver first, they will no longer be eligible for a green card or a waiver until they have resided outside the United States for ten years.

The waiver for previous unlawful presence is available only to those people who have a United States citizen or lawful permanent resident spouse and/or a United States citizen or lawful permanent resident parent. Furthermore, in order to be eligible for the waiver, the applicant must establish that their relatives will suffer extreme hardship if the applicant cannot reenter the United States before the three or ten-year period has passed.

It is very difficult to obtain a waiver from the USCIS offices abroad because the government applies a narrow view of what constitutes extreme hardship. But waivers are obtainable through the help of an immigration attorney who is an expert in this area of the law. This is no time to try a do-it-yourself waiver. The consequences are far too severe.

Because of the difficulties associated with drafting an approvable waiver and the possible ten-year wait outside the United States that one will face, it is necessary for someone with unlawful presence in the United States to consult with and obtain the assistance of an immigration expert before applying for an immigrant visa.