Unlawful Presence and I-601 Waiver

You are unlawfully present in the United States if you are a foreign national who has stayed in the U.S. after the expiration of your period of authorized stay or are present in the U.S. without being admitted or paroled.

If more than 180 days but less than a year of unlawful presence accrues, then the foreign national is inadmissible for three years (three year bar). Foreign nationals who are unlawfully present for one year or more are inadmissible for 10 years (10 year bar). Thus, if a foreign national has accrued unlawful presence in the United States, then they are deemed inadmissible and illegible to re-enter the U.S. for either the three year or 10 year bar from the date they leave the U.S.

There is a waiver available for the unlawful presence ground of inadmissibility. The waiver is however only available to foreign nationals with a U.S. citizen or lawful permanent resident (LPR) spouse or parent. Children are not deemed qualifying relatives for the waiver.

The first step in the waiver process is for the foreign national to attend an immigrant visa consular interview in their home country. Once the consular officer deems the foreign national is inadmissible and a waiver is available, the foreign national will then file the waiver (Form I-601, with the applicable filing fee) and establish there is extreme hardship to the U.S. citizen or LPR spouse or parent if the foreign national were not allowed to return to the United States. The waiver request is discretionary and extreme hardship is only one factor the officer will consider.

Certain individuals do not accrue unlawful presence and are not subject to the three or 10 year bar. For instance, foreign nationals under 18 years of age do not accrue unlawful presence.

Smith & Stephenson LLP resolves immigration concerns for individuals and businesses. We are a full-service Immigration Law Firm and represent clients in all areas of immigration law, including family based immigration and employment-based immigration. If you have immigration questions, we have answers. You can call our Law Offices 24/7 at (212) 400-7147. Our Immigration Law Firm is located in New York, New York. Our firm serves primarily clients from the Tri-state area, however, we offer telephone consultations and we can help clients all over the United States and throughout the world.