Bars and Waivers

The concept of unlawful presence is important in the context of immigration law because it can affect an individual's ability to obtain a green card (also known as a permanent resident card).

Unlawful presence refers to the time that a noncitizen spends in the United States without being authorized to do so by the Department of Homeland Security (DHS). Noncitizens who accrue more than 180 days of unlawful presence, and then leave the United States, may be barred from returning for three years. Those who accrue more than one year of unlawful presence, and then leave, may be barred from returning for 10 years. These bars to returning are known as the 3/10 year unlawful presence bars.

There are certain exceptions to these bars, known as waivers. For example, the 3/10 year unlawful presence bars may be waived if the noncitizen can demonstrate that their absence from the United States would cause extreme hardship to a qualifying relative who is a U.S. citizen or permanent resident.

It's important to note that the 3/10 year unlawful presence bars do not apply to everyone. For example, they do not apply to individuals who were under the age of 18 when they accrued the unlawful presence, or to individuals who were present in the United States as lawful nonimmigrants (such as students or tourists) and who maintained their status until the time they applied for a green card.

It's also important to note that accruing unlawful presence can have serious consequences beyond the 3/10 year unlawful presence bars. For example, individuals who accrue more than 180 days of unlawful presence and then depart the United States may be subject to a ground of inadmissibility known as the unlawful presence grounds of inadmissibility. This ground can be waived in certain circumstances, but it's important to seek the advice of an experienced immigration attorney if you believe you may be subject to this ground.

In summary, it's important to be aware of the concept of unlawful presence and the potential consequences of accruing unlawful presence in the United States. If you are seeking to obtain a green card and believe you may have accrued unlawful presence, it's important to consult with an experienced immigration attorney to determine your options and any potential waivers that may be available to you.