unlawful presence

3 Year Bar: Apply For A Waiver For Unlawful Presence

Overstaying your visa in the U.S. is never a good idea. No matter how wrong you think the USCIS is for denying your application, the best option is the legal route. The last thing you want is to be given a 3 year bar because you accrued unlawful presence in the U.S.. I have heard countless stories of immigrants that have made the mistake of staying past their visa expiration date and eventually being deported. Not only will you accrue illegal presence, but you will be considered high risk of committing immigration fraud.

So what exactly is a 3 year bar?

A 3 year bar means that you are not eligible for any U.S. visa until you remain outside of the U.S. for 3 years. You must serve your “time”. This clock starts ticking the day you leave the US so make sure you have proof of your departure.

You will receive a 3 year bar if you stayed in the US unlawfully for 6 months but less than 1 year. In some cases, an immigrant may forget when their visa expires but this isn’t considered a valid excuse. If you need to renew your visa, you should apply at least 90 days before it expires.

Frankly, if you forget your visa’s expiration date – it’s your own fault!

In my case, I knew the exact date that my K1 visa would expire and put it on my calendar. There is no reason for you to forget to take care of something this important. But, here is the good news – illegal presence less than 6 months will not result in a bar. Isn’t it nice that the USCIS gives us this cushion to get out act together?

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I-601 Waiver for Re-entry into the US

The three year bar applies to those who have been unlawfully present in the United States for a continuous period of more than 180 days (6 months), but less than one year, and who voluntarily depart the U.S. Things get a little more complicated if you have been deported.

The bar is triggered once you depart the U.S., even if to apply for an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen. Marriage to a U.S. does not give you a free pass to let your current visa or green card expire.

Normally, if an immigrant enters the US illegally and cannot prove legal entry, the immigrant cannot apply for a green card in the US through the adjustment of status process but instead, must interview for their green card at a consulate abroad. The catch – once you leave the US, you can trigger the 3 year bar of re-entry and need to apply for a 3 year bar waiver.

Many individuals learn of the 3 year bar when they have been denied re-entry.

The consulate interview will happen, you will be refused the visa but are usually informed that you can now apply for a waiver (which means your qualifying relative for the waiver in the US files the case on your behalf). However, you must stay outside of the US until the waiver is decided and approved. You will then be contacted by the consulate to either send in more documents to finish processing or attend a second interview to update the case and make sure you are eligible to enter the US now that the waiver has been approved.

This process can typically take 6 months for the waiver to be decided in the US. An additional 1 -2 months is needed until the consulate can finalize the Immigrant Visa, issue it, and allow the immigrant to enter the US and finally be reunited with their loved one(s). Unfortunately, this is a long time to wait for a decision and a long time to be away from family in the US.

Evidence Needed for the I-601 Waiver

The most important factor in proving your case is whether you can prove “extreme” hardship. This may sound vague, but without extreme hardship, USCIS may not approve the waiver. Some common types of hardships are family separation, financial difficulties, etc., but these are insufficient evidence of extreme hardship.  I always encourage you to submit as much evidence as possible proving that failure to receive the waiver would result in extreme hardship to your US citizen spouse or parent.

Of course, consulates differ on what factors in a case are more important than others. The largest consulate in the world with the most waiver applications is Ciudad Juarez, Mexico. The USCIS office at this consulate considered the following as factors that are relevant to deciding whether the US citizen parent or spouse will suffer “extreme hardship”:

  • Health
    • ongoing or specialized treatment for a physical or mental condition;
    • availability and quality of such treatment in your home country;
    • whether the condition is chronic or acute, or long-or short-term.
  • Financials
    • Future employment prospects;
    • financial loss due to sale of home or business;
    • serious decline in standard of living;
    • ability to recover from short-term losses;
    • cost of needs for special education or training for children;
    • cost of care for family members (i.e., elderly parents).
  • Education
    • loss of opportunity for higher education;
    • limited scope of education options in home country;
    • unable to complete current program;
    • education in foreign language or culture;
    • availability of special training programs in specific fields.
  • Personal
    • close family in the United States and /or your home country;
    • separation from spouse/children;
    • ages of your children;
    • length of residence and your community ties in the United States.
  • Special Factors
    • Cultural, language, religious, and ethnic obstacles;
    • valid fears of persecution, physical harm, or injury;
    • social ostracism or stigma;
    • access to social institutions or structures.

Hardship Waiver Success Story

“I met my wife in 2008 and we soon fell in love with each other.  About a year later we were married in California . I knew that my wife was here “illegally” but we thought it would be easy to get her a green card since I am a US citizen. Imagine our surprise when we found out how difficult it was going to be!

We decided to adjust her status so that she can get her green card and stay legally with me. If everything went right, my wife would have a green card and we can live happily. If not, she would be deported back to Mexico for 6 months to a year, waiting for approval.

The thought of that scared me to death! We haven’t spent a night apart since we got married. No way was I going to allow her to leave me. I started reading as much as I could on the internet about illegal presence and what that would mean. My wife and I went to see an immigration attorney for a consultation, and realized how expensive it would be! I just didn’t have that kind of money.

So we decided to do our own research and found many helpful websites that outline the steps we need to take. We gathered all the necessary papers and left for Mexico. We had to spend about 2 weeks there, first for the medical appointment, then the “interview” and finally the “Hardship waiver interview”.

While staying at the motel in Mexico, we met quite a few people. We were SHOCKED at how many people where totally unprepared and did not have the documentation they needed for the interview. Most of them went away very unhappy after their interview. Everything went smoothly for us, and within 30 minutes of my wife receiving her new green card, we drove back across the border and on our way home!

Our lives have changed so much within the last 8 months. My wife has her new Social Security card and drivers license.”

– Peter

Many other stories don’t go as well as Peter’s. The best advice I can give you is to do your homework! Learn as much about the process as possible before applying for the hardship waiver. If you are not comfortable filing the paperwork yourself, do as much homework on the attorney you are hiring!

Knowledge is power.

Knowing what to expect at the interview is vital. Be prepared and confident and you will be approved for the hardship waiver. At the end of the day, your goal is to gain re-entry into the US but this is not guaranteed. You must prove that you deserve to be allowed to re-enter. Remember, immigration is a benefit and not a right.

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