EP13: Unlawful Presence and The I-601/I-601A Waivers

The term “unlawful presence” entered into the grounds of inadmissibility on April 1st, 1997. Before this date, USCIS (or NIS) did not punish those who entered the United States and stayed out of status.

Therefore, time spent in the US unlawfully before April 1st, 1997 did not towards a bar to entry. (If you only entered the US illegally before this date, count yourself lucky!)

Related Podcast: EP7 – Deported And Married To US Citizen, What Are My Options

So, what exactly does “unlawful presence” really mean?

It basically translates to an individual that accrues unlawful presence when he or she is “present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

That was a mouthful!

If you are still a bit confused, here is a good example of unlawful presence and how someone can accrue it based on their entry to the US and their stay.

Case Example 1: 

On December 1, 2016, Janet entered the United States on a B-1/B-2 nonimmigrant visa and was issued an I-94 authorizing her to stay in the United States for 90 days. She overstayed and started accruing unlawful presence on March 1, 2017. She filed for adjustment of status on April 15, 2017, which stopped the running of her unlawful presence. Nevertheless, she is not in a lawful immigration status.

Okay, can you see the reason Janet stopped accruing unlawful presence time in the example above?

Between March 1, 2017 and April 15, 2017 she began accruing unlawful presence time. However, after filing to adjust her status the “unlawful presence clock” stopped ticking for her.

The graph above shows the number of removals or deportations from 2008 thru 2017.

Case Example 2:

Miles entered the United States when he was two years old. He turned 18 on November 15, 2014 and started accruing unlawful presence the next day. As of May 15, 2015, he had accrued more than 180 days of unlawful presence. When Miles departs the United States for his consular interview on June 20, 2015, he will trigger the three-year bar and he will need a waiver of inadmissibility to return before that three-year period expires.

If Miles had departed the United States before May 15, 2015 to await his consular interview abroad, he would not be inadmissible for unlawful presence.

Related Post: How To Fill Out I-601A Provisional Waiver For Unlawful Presence Part 1

Related Post: I-601A Waiver Process For Unlawful Presence

Six Categories of Individuals Who Do Not Accrue Unlawful Presence

  • Under 18 years of age
  • Applicants for asylum during the pendency of the application, provided the applicant didnot work without employment authorization
  • Those who have been granted Family Unity during the authorized period
  • Battered spouses and children, provided there is a substantial connection between theabuse and the unlawful presence
  • Victims of a severe form of trafficking in persons if the trafficking was at least onecentral reason for the unlawful presence, and
  • Nonimmigrants who have made a timely, non-frivolous application for an extension of stay or change of status, during the 120-day period after filing the application.

Related Post: How to Overcome Inadmissibility Due to Unlawful Presence

Related Post: 3 Year Bar: Apply For A Waiver For Unlawful Presence

Should You File Waiver for Unlawful Presence?

If you’re unsure whether you will need to file for a waiver of unlawful presence, you will need to look back at your immigration history to see if you’ve accrued unlawful presence.

You can request your immigration file by submitting a FOIA request. This can take many weeks to process so it’s best to do before you submit your application.

If you need help with completing the I-601 or I-601A waiver, sign up for premium case support and get 1-on-1 help instantly.

No need to worry about if you’re completing the form correctly or what other issues could come up with your case.

Related Post: How To File I-212 and I-601 Together For Spouse

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