Do I Need A Hardship Waiver I-601 If My Fiance(e) Has A 10 Year Ban That Has Been Served?

Many immigrants that arrive in the United States legally but then overstay their visit are unaware of the consequences of leaving the United States after accruing “unlawful presence”.

If your fiance(e) has remained in the United States unlawfully and then left the country, they may be prohibited from returning to the U.S. for a specific period of time or barred permanently.

Three Potential Bars For Immigrants Seeking Readmission

  • Three-Year Ban:
    • If you were in the U.S. illegally for more than 180 days, but less than one year, and you left the U.S. voluntarily before any removal proceedings were instituted against you, you may be barred from returning for three years if you try to lawfully enter the United States within those three years.  (INA section 212(a)(9)(B)(i)(l)).
  • 10-Year Ban:
    • If you were in the U.S. illegally for one year or more and you leave, you may be barred from returning for ten years should you apply to come back to the U.S. on any valid immigrant or non-immigrant visa (K-1 Visa).
    • Note that the 10-year bar applies whether you were deported or you left voluntarily.  In contrast, the bar limited to three years requires that you leave voluntarily BEFORE deportation proceedings are initiated against you. (INA section 212(a)(9)(B)(i)(ll)).
  • Permanent Ban:
    • The permanent bar renders people inadmissible if he or she has been unlawfully present in the U.S. for an aggregate period of more than one year, and who enters or attempts to enter the U.S. without being admitted.
    • This means that if you come back illegally and are caught, you will be subject to the permanent bar to admission.  (INA section 212(a)(9)(C)(i)(l)).

Can We Apply For The I-601 Waiver If The Ban Was Served?

Approved I-601 Hardship Waiver
Approved I-601 Hardship Waiver

If your fiance(e) has a 10 year ban and has been outside of the United States for at least 10 years, they do not need a waiver for you to apply for the K-1 Visa. Once the 10 year ban is served, you become admissible just like someone who never received a ban.

Make sure that you have documentation showing when your fiance(e) left the United States as evidence of the exact date they left. It does not matter if they left voluntarily or were deported because both cases receive a 10 year ban from the U.S.

If, however, your fiance(e) has not yet served the 10 year ban, then you will need to apply with the I-601 Application for Waiver of Grounds of Inadmissibility.

If My Fiance(e) Is Currently In The United States Illegally, Do We Need A Waiver?

Unlawful presence is a period of unauthorized stay in the U.S.  Generally speaking, you start to accrue unlawful presence on the day after the expiration date stated on the I-94 arrival/departure record.

You are also considered unlawfully present if you enter unlawfully without being formally admitted through a port of entry. For example, you crossed the Canadian or Mexican border without being admitted by border officers.

One must actually leave the U.S. to trigger any of the three bars mentioned above. This actually tends to encourage those here unlawfully to remain in the United States, rather than leave and risk triggering the bar on later admission.

For your specific case, it is important to contact an immigration lawyer if your fiance(e) is currently unlawfully present in the U.S.

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