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Unlawful Presence: Have You Been Barred from Reentering the United States?

Written By The Shapiro Law Group on November 12, 2019

Undocumented immigrants who are unlawfully present in the United States may be barred from reentering the U.S. for a period of years or permanently, depending on the length of time that they have been unlawfully present in the country. These rules apply to people who enter the U.S. unlawfully as well as to people who overstay their valid visas. People who are found to be unlawfully present in the U.S. must return to their home countries for three years, 10 years, or permanently. However, it is possible to secure waivers of unlawful presence in some cases.

The Three- and 10-year Bars

People who are found to have been unlawfully present in the country prior to the start of deportation procedures for 180 days up to less than one year will face a three-year bar to reentering the U.S. Those who have been unlawfully present in the U.S. for one year or more and leave before, during, or after the initiation of deportation and removal proceedings will face a 10-year bar to reentering the U.S. Those who have previously accrued more than a year of unlawful presence in the U.S. and subsequently reenter the country unlawfully will be permanently barred from reentry. 

Loopholes

There are a few loopholes in the time bar rules. If the period of unlawful presence occurred prior to April 1, 1997, it will not count. The time that a person spent in the U.S. during which they were unlawfully present will not count towards the three- and 10-year bars if they were under the age of 18 at the time. Finally, continuous unlawful presence of at least 180 days is what is counted rather than intermittent stays.

Waivers

It is possible for some people to secure waivers of unlawful presence. Some apply for these waivers based on their legitimate marriages to U.S. citizens. To secure these waivers based on marriages, the immigrants will have to show the USCIS that their families would suffer extreme hardships if they were forced to return to their countries. The time bars do not apply to people who are present in the U.S. and who are eligible to apply for adjustments of status. They are allowed to apply for an adjustment of status while they remain in the country to seek their green cards. However, if they leave the U.S. and try to apply in their home countries, it will be more difficult to secure status adjustments.