Be Aware! Accrual of Unlawful Presence Can Prevent You From Entering the U.S. Permanently
Updated: Aug 2, 2019
Whether you are currently here in the U.S. on a visitor visa, student visa, or a temporary worker visa, you should have received an I-94 Form/I-797 Approval Notice, indicating your authorized period of stay in the U.S. For example, if you have entered the U.S. on a H-1B visa, your status might be set to expire within three years. Every time a deadline or a due date is months or even years away, it is easy to push it to the back of our minds and eventually forget about it. I mean, with immediately pressing matters such as that work project due next week or the finals coming up in a couple days, who has the time to think about something that won’t immediately affect you until a couple years later?
What Happens If You Don’t Stay On Top Of It
Make sure to stay on top of it! If you happen to overstay (whether accidental or not) beyond your authorized period of stay in the U.S., you can face significant consequences. Once you are out of status and start accruing unlawful presence, if you decide to travel abroad one day, you might not be allowed to enter back into the U.S. for a significant amount of time. Therefore, from the moment you enter the U.S., you should make sure to have a system in place to keep track of the expiration date and plan a course of action. Depending on the duration of the accrued unlawful presence, you may have to wait a period of 3 or 10 years before being allowed to enter back into the U.S. In the most extreme case, you might be permanently barred from entering the U.S.
You may be barred from entering the U.S. for a period of three years, if you depart the United States after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay;
You may be barred from entering the U.S. for a period of ten years, if you depart the United States after having accrued one year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings;
You may be barred from entering the U.S. permanently, if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the U.S.
What Can I Do If It Is Already Too Late?
If you are already subject to a bar, all hope is not lost. If you are married to a U.S. citizen or a lawful permanent resident, or has a parent who is a U.S. citizen or a lawful permanent resident, you may be able to obtain a waiver to enter the U.S. However, it is generally very difficult to meet the requirements to successfully obtain a waiver, as you need to prove that the U.S. citizen/lawful permanent resident spouse or parent will suffer an extreme hardship if he or she were to be separated from you. In order to see if a waiver might be an option for you, we recommend that you consult with an immigration attorney.
Prevention is Key
In order to avoid the severe consequences associated with the accrual of unlawful presence, prevention is key. Make sure to stay on top of the expiration date and plan a course of action well in advance, whether that may involve preparing an extension of status application or slowly winding up your matters in the U.S. in order to depart the U.S. on a timely manner. Especially if your close family members are residing in the U.S., it is imperative that you don’t find yourself in the predicament mentioned above so that you can continue to visit/reside with your family members.
*Please note that the information contained in this article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Please consult with an immigration attorney for advice specifically tailored to your case.*