What is unlawful presence?

Unlawful presence in the United States may make you inadmissible for a certain period of time, which means that you won’t be able to get a fiance visa or immigrant visa. Unlawful presence is just that…being present in the United States unlawfully. Some of the common ways that people will end up with unlawful presence 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, such as being under 18 years of age. You should always check with an immigration lawyer to find out if unlawful presence will be an issue in your immigration case.

What is an unlawful presence waiver?

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.

If your departure triggers the 3 year bar, you won’t be able to return to the United States for 3 years. 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 10 year bar, you won’t be able to return to the United States for 10 years. The 10 year bar is triggered if you depart the United States after you have accumulated unlawful presence of 1 year or more.

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

How do I know if I need an unlawful presence waiver?

If the unlawful presence bar applies to you, you may be able to return to the United States sooner if you qualify for an unlawful presence waiver. 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. You have to show that the hardship to your qualifying relative would be extreme compared to the hardship normally encountered in a family separation.

Do I need to hire a Virginia immigration lawyer for my unlawful presence waiver?

Although there is no requirement to hire a Virginia immigration lawyer for your unlawful presence waiver, most people will benefit from the assistance of an immigration lawyer in preparing their waiver application. Waiver cases can be very challenging because of the complexity of the legal arguments that need to be made and the importance of providing supporting evidence for each of your hardship factors. You can learn more about the benefits of working with a Virginia immigration lawyer on your waiver case here.