Unlawful Presence Waivers – General Information

Will you need an unlawful presence waiver in order to get an immigrant visa or green card?

Every year many people find out that they won’t be able to get an immigrant visa or a green card unless they first receive an unlawful presence waiver (also known as an I601 hardship waiver). Some people learn this during their immigrant visa interview when the consular officer tells them that they can’t receive an immigrant visa without first getting a waiver for past unlawful presence. Others learn about the need for an unlawful presence waiver from a friend or through Internet research before they even begin the immigrant visa process.

What is an unlawful presence waiver?

Simply put, if someone has been unlawfully present in the United States, they may be “inadmissible” which means that they can’t receive an immigrant visa or obtain a green card through the adjustment of status process. You can learn more about this type of inadmissibility in the below section on the 3-year and 10-year bars.

An unlawful presence waiver basically forgives this type of inadmissibility and allows you to move forward with the immigration process.

Some of the common ways that people will end up being unlawful present in the United States include:

  • Entering the United States unlawfully
  • Overstaying a visa
  • Violating the terms of a visa

But, there are some exceptions to the unlawful presence rules, and you should never make assumptions about whether unlawful presence will be an issue in your case. For example, unlawful presence doesn’t start until after you turn 18 years of age. In certain circumstances, you can also fall out of your immigration status but not be considered to be accumulating unlawful presence. You should always check with an immigration lawyer to find out if unlawful presence will be an issue in your immigration case.

3-Year and 10-Year Bars

If you have been unlawfully present in the United States AND THEN DEPART THE UNITED STATES, you may trigger either the-3 year bar or the 10-year bar.

The 3-year bar is triggered if you depart the United States after you have accumulated unlawful presence of more than 180 days but less than 1 year. If your departure triggers the 3-year bar, you won’t be able to return to the United States for 3 years unless you first receive an unlawful presence waiver.

The 10 year bar is triggered if you depart the United States after you have accumulated unlawful presence of 1 year or more. If your departure triggers the 10-year bar, you won’t be able to return to the United States for 10 years unless you first receive an unlawful presence waiver.

Make sure you understand how the unlawful presence bar will apply to you BEFORE YOU DEPART the United States!

Unlawful Presence Waiver Requirements

If the unlawful presence bar applies to you and you qualify for an unlawful presence waiver, you may be able to return to the United States without having to spend either 3 or 10 years outside of the United States.

To qualify for this type of waiver, you must show “extreme hardship” to a United States citizen or permanent resident spouse or parent.

It can be very difficult to prove that you meet the extreme hardship standard. It isn’t enough to show that it would be financially difficult or emotionally upsetting if you are separated from your family. You have to show that the hardship to your qualifying relative would be extreme compared to the hardship normally encountered in a family separation. Most people will benefit from the assistance of an immigration lawyer in preparing their waiver application.

Before Beginning Your Unlawful Presence Waiver Application

Make sure that you understand the waiver application process and what it takes to win a waiver case before you begin your unlawful presence waiver application. You can learn more about this type of waiver by exploring the articles on this website, requesting a free copy of the Immigration Hardship Letter Special Report, watching an immigration waiver webinar or viewing the immigration videos on this website. All of this information is available for free before you ever talk to an immigration lawyer. By learning more about the unlawful presence waiver process before you do anything else, you’ll be able to better decide whether you should hire an immigration lawyer and what questions you should ask your lawyer if you decide to work with one.

Learn more about unlawful presence waivers

To help you better understand unlawful presence waivers, I've collected answers to some of the most frequently asked questions that I run into as an Idaho immigration lawyer:

Frequently Asked Questions About Unlawful Presence Waivers