In certain situations, you may not be allowed to enter the United States, either for a visit or to live here permanently.  A common reason many people cannot enter the United States is because they stayed in the United States without status or entered without inspection, and are subject to the three or ten-year bar.  These “bars” mean you are not allowed to enter for either three or ten years depending on how long you were in the United States unlawfully.  In legal terms, you are “inadmissible”.  You are also not allowed to adjust your status if you are in the United States and entered without inspection. 

 

Depending on the specifics of your situation, you may apply for one of a number of  “waivers” to allow entry for yourself or a loved one to overcome the bars.  The waiver process is very complex, and the smallest of details can be important in ensuring a successful application.  If you believe you or a family member may be eligible for a waiver, please contact our office for a free consultation. 

 

Unlawful Presence, the 3-Year Bar & 10-Year Bar

Unlawful Presence simply means the amount of time a foreign national stays in the United States beyond the expiration of the authorized stay, or the time after entering the United States illegally without inspection or parole.  The amount of Unlawful Presence a person accrues determines which bar they will be subject to. 

 

• A person that has 6 months of Unlawful Presence and leaves the United States voluntarily (instead of being removed/deported), is subject to the 3-Year Bar, and cannot reenter the United States for three years.

 

• A person that has 12 months of Unlawful Presence and leaves the United States voluntarily (instead of being removed/deported), is subject to the 10-Year Bar, and cannot reenter the United States for ten years.

 

Example 1:  Wendy entered the United States as a B1/B2 visitor from Romania.  She arrived in Seattle and decided she wanted to stay longer.  She stayed 9 months past the date her I-94 said she could stay in the States as a visitor.  She returned to Romania.  Wendy is inadmissible and cannot reenter the United States for 3 years because she overstayed her visa and accrued 9 months of Unlawful Presence.  She needs a waiver if she wants to reenter the States within those 3 years.

 

Example 2:  Juan entered the United States without inspection from Mexico.  He lived in California for 2 years before returning to Mexico on his own.  Juan is inadmissible cannot reenter the United States for 10 years because he entered without inspection and accrued over 12 months of Unlawful Presence.  He needs a waiver if he wanted to reenter the States within those 10 years.

 

Example 2 with Marriage:  Let’s say that while Juan was living in California, he marries a United States Citizen, and moves to Seattle where he starts a family.  He wanted to apply for his Green Card; however, because he entered without inspection, he cannot adjust his status – because he has no legal status.  Juan still subject to the 10-Year Bar and needs a waiver if he wants to apply for his Green Card within those 10 years.

 

 

I-601A Provisional Waiver:  For Immediate Relatives of U.S. Citizens in the United States Who are Inadmissible Because of Unlawful Presence

Originally, when you applied for a waiver, you had to leave the United States, apply from your country of origin, and had to wait months before you found out if your waiver was even approved.  Now, thanks to the I-601A Provisional Waiver, you can apply for a waiver while still in the United States if your only reason for inadmissibility is a bar due to Unlawful Presence.

 

This waiver allows the spouse or unmarried children (under 21 years of age) of a U.S. Citizen to waive the 3 or 10-Year Bar for Unlawful Presence, if the U.S. Citizen spouse or parent would suffer “extreme hardship” if the foreign national relative were forced to leave the United States.  The foreign national must be at least 17, have an approved I-130 or I-360, and be physically present in the United States during the application process.  It’s important to remember:  you must demonstrate the extreme hardship to the United States Citizen, not the foreign national.  Defining “extreme hardship” is not an easy task, but includes factors such as:  family ties, financial contributions, health, and country conditions.  It is highly recommended that you speak with an attorney who knows the legal intricacies of applying for this kind of waiver, and knows how to articulate the legal standards of “extreme hardship” in your application.

 

Example:  Juan entered the United States without inspection from Mexico.  He lived in California for 2 years, got married to Paula (a United States Citizen), and moved to Seattle where he has two sons.  He wanted to apply for his Green Card; however, because he entered without inspection, he cannot adjust his status – because he has no legal status.  Paula files an I-130, which gets approved.  While Juan is still in the United States, they file an I-601A.  They demonstrate that Paula and their two sons (all U.S. Citizens) would suffer extreme hardship if Juan were forced to leave the country.  Juan returns to Mexico, reenters the United States legally, and finally gets his Green Card.

 

 

I-601 Waiver:  For Immediate Relatives of U.S. Citizens Who Are Inadmissible Because of Unlawful Presence and Misrepresentation

This waiver allows a U.S. citizen or Legal Permanent Resident spouse or child (under 21 years of age) of to apply for a waiver of the Unlawful Presence of Misrepresentation grounds of inadmissibility if they can prove the U.S. Citizen or LPR family member would suffer “extreme hardship” if the foreign national is not allowed to remain in or return to the United States.  A U.S. Citizen fiancé(e) may also file this waiver for their foreign national fiancé(e).

 

It’s important to remember:  you must demonstrate the extreme hardship to the United States Citizen, not the foreign national.  Defining “extreme hardship” is not an easy task, but includes factors such as:  family ties, financial contributions, health, and country conditions.  It is highly recommended that you speak with an attorney who knows the legal intricacies of applying for this kind of waiver, and knows how to articulate the legal standards of “extreme hardship” in your application.

 

Misrepresentation, generally, means that you fraudulently or willingly made a misrepresentation to get an immigration benefit or entry to the United States.  Making a misrepresentation makes you inadmissible and bars you for life from entering the United States.  There are many intricate rules regarding Misrepresentation, and you should consult with an attorney if you believe you are eligible for this waiver.

 

Example with Misrepresentation:  Mika is a Russian citizen, but wants to go to the United States to visit.  She is afraid that she won’t get a Visa, so she lies on her application that she is a famous scientist who wants to do research in the States.  Mika has made a misrepresentation by lying to get her Visa, but still gets into the States.  She leaves the U.S., but the USCIS finds out about the misrepresentation.  She is banned for life from entering the U.S. and must file an I-601 waiver if she wants to legally return to the United States as an LPR.