First, let’s discuss the two ways to accrue unlawful presence.
You have remained in the United States after the expiration of your authorized stay (Scenario #1); or
You are present in the United States without being admitted or paroled (Scenario #2).
212(a)(9)(B)(ii) of the INA
You entered the United States on a valid visa such as a B-2 tourist visa, a F-1 student visa, or even under the Visa Waiver Program. Your Duration of Stay has come and gone. Generally, 90 days from day of entry but check your I-94 Arrival/Departure Record (https://i94.cbp.dhs.gov/I94/) to confirm. You’ve now stayed longer than allowable on your visa and have begun to accrue unlawful presence.
You Entered Without Inspection. This means you entered without valid entry documents, which would have required you to present yourself at a Point of Entry with your entry document and then be admitted by a border patrol or other immigration officer. So you’re unlawfully present in the United States.
Note: You start accruing Unlawful Presence once you’ve overstayed your visa or have entered without inspection. However, as long as you’ve accrued less than 180 days of Unlawful Presence during a single stay, you will not be subject to a three or ten year bar for the unlawful presence.
So what happens once you have a path to Lawful Permanent Residence (“Green Card”)?
Let’s say you now have a valid path to a green card due to marriage to a United States Citizen and want to adjust your status (“Adjustment of Status”) in the United States. Thanks to your previous lawful admission to the United States you do not require a waiver for overstaying your visa. Scenario #1 means you can file a straightforward adjustment case.
Note: Marriage to a United States Citizen presents several exemptions from inadmissibility because you would be considered an Immediate Family Relative. I’ll go over these at a later time but for our purposes just know that: Marriage to a United States Citizen + Valid Admission = Green Card.
You can now past go, pay Immigration $1,760, and collect your green card.
However, if you came in under Scenario #2, things now get complicated. We’re talking waivers, specifically the Unlawful Presence Waiver filed on form I-601A.
The reason you need this waiver is because you’ve entered unlawfully and thus have accrued unlawful presence and so are now subject to a three or ten year bar from the United States once you leave the country. You can only apply for Adjustment of Status in the United States if you’ve been lawfully admitted.
Keep in mind, that under Scenario #2, you will be required to go through a process called Consular Processing in order to enter the United States as a Lawful Permanent Resident. However, without the Unlawful Presence Waiver, you will not be allowed to return to the United States because you will be subject to a bar.
How do you get approved for a I-601A Unlawful Presence Waiver?
This is where things get a complicated. In order to qualify for this waiver you need to show Extreme Hardship to a United States Citizen or Lawful Permanent Resident Parent or Spouse.
Note: Children are not accounted for in this waiver but that doesn’t mean we can’t use hardship associated with them for your waiver.
Extreme Hardship isn’t clearly defined by the Immigration Service but it generally means economic, medical, emotional, and personal hardship on the Qualifying Relative (United States Citizen or Lawful Permanent Resident Spouse or Parent).
This hardship would be caused by either relocation with Qualifying Relative to his home country or separation from Qualifying Relative due to him moving back to his home country, or both.
I’ll go into more details about this process in the next article. Stay Tuned!