unlawful presence

How to Overcome Inadmissibility Due to Unlawful Presence

No one really knows the number of undocumented immigrants currently living in the US. It’s estimated to be about 11 million. That’s a lot of people who have very little rights in this country and limited options to get a green card. Even if they wanted to adjust their status, many often don’t realize that they are inadmissible due to their unlawful presence.

I’m sure you wondering what the term “inadmissible” is and what does that have to do with getting a green card, right? Well, my friend, let me school you on some immigration facts that you probably are unaware of. Being found inadmissible means that there is something in your background that causes you not to be eligible for an immigration benefit.

You may also be surprised to know that marrying a US citizen doesn’t necessarily mean that you are no longer inadmissible. Before a green card can be issued, you’ll need to overcome the original reason for your inadmissibility: unlawful presence.

Spending too much time in the United States without a valid visa gets many immigrants in trouble. No matter how you initially entered the country, whether legal or illegal, the only thing that matters USCIS is if you stayed past the date you were supposed to.

Are You Inadmissible Due to Unlawful Presence?

You are found to be inadmissible if you have crossed the US border without inspection (illegally) or you overstayed the expiration date on your I-94 card. Your unlawful presence time begins to accrue the minute you have no legal right to be in the United States and continues until you either voluntarily leave or are deported.

The sad truth is that many immigrants that are racking up unlawful presence time are completely unaware of it. No one really tells you about if you entered on a valid visa. Certainly not the customs of border protections officers. Many times, the only way you’ll know is if you want to adjust your status and are told you are inadmissible.

But here’s where things get bizarre…

Let’s say that you’ve recently married a US citizen:

  • You want to adjust your status so you can apply for a green card
  • You and your spouse fill out the I-130 petition as an immediate
  • Things go smoothly and USCIS approves the petition
  • You are then told you must interview at the consulate of your home country
  • You go back to your home country for the interview

….and BAM! You have triggered a 10 year bar from the US.

What the heck? How did that happen?

This a little know issue that comes up time and time again for many immigrants adjusting their status. Unless you do the research yourself or hire an immigration attorney you wouldn’t understand the repercussions of this process.

I know of one couple who have been separated for over 6 years because of this same situation. Jose married a US citizen and decided to apply for his green card based on his marriage. The I-130 petition was approved and he was told to go back to Mexico for his interview.

NO ONE told him that this would trigger a 10 year bar because he of his 15 year unlawful presence time in the US. Unfortunately, they hired one too many bad attorneys that have screwed up their paperwork that causes two different denials of their I-601 waiver. (I’ll discuss this waiver later). Now, his US wife lives in California with their 2 children and Jose is still in Mexico with no way to be with his family.

I always say that knowledge is power and I believe this 100%. Don’t trust someone else with your case unless you know exactly what the immigration law says about your situation. An immigration attorney can be valuable in a difficult case but they can be some stupid mistakes that can cost you your family.

If your going to hire an immigration attorney, review everything they are about to submit and ask as many questions as you can about the process.

The I-601 Waiver for Inadmissibility Due to Unlawful Presence

  • Have you crossed the US border illegally and stayed for more than 6 months? There’s a waiver for that.
  • Have you entered on valid visa but then decided to stay in the US indefinitely? There’s a waiver for that.
  • Have you been deported after an immigration hearing and want to enter the US again? There’s a waiver for that.
  • Have you lied on an immigration application about prior overstays? There’s a waiver for that.

Great news! You aren’t banned from the US for life and there are ways to overcome inadmissibility. But here’s the catch. You must have a qualifying US relative that is a US citizen or permanent resident. All others can’t use the I-601 waiver. Sorry – your sister or uncle don’t count as qualifying relative.

The I-601 waiver is used to show that your US relative will suffer EXTREME hardship if you weren’t allowed back in the US for 3 or 10 years to wait out the bar. The term “extreme hardship” is vague for a reason and it can be really hard to prove.

You must show extreme hardship for your US spouse or US parent. Hardship on your US citizen children don’t count. When I found out the you cannot use hardship suffered by US born children to prove your case for the I-601 waiver, I was truly shocked.

I know of one family who has a child in the hospital with cancer and the mother was deported because she entered the US illegally. The father was a green card holder through his employer and married his wife over 10 years ago. The mother now lives in Mexico and can’t be there for her child that is going through chemotherapy. They applied for a waiver but were denied because they couldn’t prove extreme hardship on the US husband even though their child might die from cancer.

What can be used to show extreme hardship on the US spouse?

  • Serious medical condition of US spouse – you’ll need supporting documents and letters from doctors saying that you are the only one that can care for your spouse at home. If the US spouse had surgery that is relevant to the current situation even if its years ago, get the documentation from the hospital!
  • Mental health issues of US spouse – get documented proof that your US spouse is having major depression, suicidal thoughts, about to get fired from job due to stress. Tell your employer and get a letter stating that performance is an issue after such and such date (after the deportation).
  • Caring for elderly dying parents – If one or both of your parents are chronically ill and need constant care and who’s condition is bad enough that you must live with them assisting their every need, you can make this argument. This shows that the US spouse really needs the applicant in the US to help care for their ill parents full time. Include evidence of the parents health, prognosis, full time care required.
  • Your home country is at war – if you were sent back or will be sent back to your home country but it’s extremely unsafe use this information to make your case. For example: if you’re from Syria and there is a civil war going on right now, get news articles about it and include a statement that you will likely be killed if you were sent back.
  • Other weaker arguments that can be included – financial hardships, student loans debts, children failing grades at school, caring for disabled relative, job loss due to childcare needs.

To have a really strong I-601 waiver case, you literally need to find every piece of evidence you can to show extreme hardship. This doesn’t mean that you can just makes things up because USCIS will see right throw it. They want evidence that goes back before your application and that can be documented from credible sources.

Final Thoughts on Inadmissibility for Unlawful Presence

Before applying for the I-601 waiver, do some research on exactly what USCIS is looking for and how to prove extreme hardship. Learn what the different forms require and seek the help of an immigration attorney if you’re still now sure. Always review the forms that they fill out to make sure that a box wasn’t checked when it shouldn’t have been.

Immigration is getting more and more difficult as the days go by. If you have a legal way to get a green card (through a US citizen spouse), apply for it right away! If you need a waiver, apply for that too. You don’t know when US immigration law will change and you won’t be eligible for a waiver anymore.

Having a green card in this country gives you a lot of more rights but ultimately, you want to naturalize to become a citizen to really feel safe with your family. That’s years down the line so for today, I’d recommend reading up on the rules for unlawful presence and what you need to prove extreme hardship to your spouse.

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