The Biden Administration’s U.S. Citizenship Act of 2021 calls for comprehensive immigration reform. One provision seeks to get rid of the 3/10-year unlawful presence bar.
This would be a major departure from current law, which requires a special waiver for this inadmissibility ground. Immigrant visa applicants who have this bar must first receive an I-601 or I-601A waiver for the visa to be issued. Nonimmigrant visa applicants with this bar need a 212(d)(3) waiver to be granted a visa.
In this episode, I focus on the immigrant waiver for the unlawful presence bar. I discuss the key differences between the I-601 and I-601A waiver, the qualifying relative and extreme hardship requirements, and the factors that USCIS considers in deciding whether to approve or deny the application.
For more information on the unlawful presence waiver, see:
- When do you need an I-601 waiver due to unlawful presence (and how do you get it)?
- What should you do to get an I-601 waiver for unlawful presence?
- Expansion of I-601A Provisional Unlawful Presence Waiver: What Changed?
- Expansion of I-601A Provisional Unlawful Presence Waiver: What Stayed the Same?
- 212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages
Whether any immigration reform or changes in the law will eliminate the unlawful presence bar is uncertain. In the meantime, the 3/10-year bar due to accrual of unlawful presence lasting more than 180 days – prior to departing the U.S. – continues to exist.
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.