Chicago Business Immigration Attorneys

Foreign National Who Has Overstayed

A foreign national who was admitted using a nonimmigrant visa and who at any time remained in the U.S. beyond his or her period of authorized stay (as shown on the Form I-94) shall not be readmitted to the U.S. unless he or she has first obtained a new nonimmigrant visa from a U.S. consular post in the foreign national’s home country. As a result of the overstay, the visa the foreign national used to enter the U.S. automatically becomes void. This concept does not apply to citizens of Canada, as they do not require a visa to apply for admission to the United States.

Expedited Removal Without a Hearing

If the foreign national has done one of the following, he or she can be denied admission to the U.S. without a hearing:

  • Obtained a visa by fraud or willful misrepresentation.
  • Falsely claimed U.S. citizenship.
  • Received public benefits illegally.
  • Is an immigrant who does not possess an unexpired Permanent Resident Card, temporary evidence stamp, immigrant visa, Reentry Permit, or other valid entry document and an unexpired passport or identity document.
  • Is a nonimmigrant without a passport valid for six (6) months from the date of expiration of initial or contemplated period of stay or does not possess a valid nonimmigrant visa or border-crossing card

By being removed without a hearing (“Expedited Removal”), the foreign national is subsequently barred from applying to enter the United States for five (5) years. Visa Waiver Program applicants are not subject to this application of expedited removal and the subsequent five-year bar. A foreign national in the U.S. who entered without inspection (not admitted and not paroled) who is unable to show his or her physical presence in the U.S. for a continuous period of two (2) years immediately prior to the date of entry (subjecting the alien to the removal) can be removed. A foreign national applying to enter the United States may withdraw his or her application for admission at the discretion of the Border Official. A foreign national facing “Expedited Removal” can request asylum if the foreign national can establish a credible fear of persecution showing a “significant possibility” of a viable asylum application.

Unlawfully Present in the United States

A foreign national becomes “unlawfully present” in the United States when he or she remains in the United States beyond the period authorized by CBP or USCIS (typically beyond the date stated on the Form I-94), or if the foreign national is present in the United States without being admitted or paroled, or if a agency of the Department of Homeland Security determines the foreign national has become unlawfully present by violating his or her immigration status.

The 3-Year/10-Year Bar: The 3-year bar or prohibition on admission to the United States applies to a foreign national who before departing the United States, was “unlawfully present” in the United States after April 1, 1997, for more than 180 days but less than one year. The 10-year bar or prohibition on admission to the United States applies to a foreign national who, before departing the United States, was “unlawfully present” for one year or more. The bars on the ability to return to the United States are imposed when the foreign national departs the United States after spending the requisite period “unlawfully present” in the United States. Exceptions to the application of the bars exist for a foreign national who is under the age of 18; a foreign national who has a bona fide application for asylum pending and who has not worked without authorization; a beneficiary of the Family Unity Protection Program under IMMACT’90; and “battered” women and children. A 120-day grace period for “unlawful presence” is acknowledged for a foreign national who (i) was admitted or paroled into the United States, (ii) filed a non-frivolous application to change or extend status before the expiration of his or her period of stay (before the expiration date on the Form I-94), (iii) and such application remains pending with the USCIS, and (iv) the foreign national has not been employed without authorization. A foreign national who is the spouse, son or daughter of a U.S. citizen may apply for a waiver of the 3-year/10-year bar if “extreme hardship” can be shown.