When a non-citizen (other than a permanent resident) leaves the U.S. after accruing unlawful presence in the U.S. for more than 180 days, the 3 year/10 year bar to re-entry is triggered. A person who is inadmissible due to unlawful presence may not receive an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa before the 3 year/10 year bar expires without first obtaining an I-601 waiver under section 212(a)(9)(B)(v) of the Immigration & Nationality Act. Only certain immigrants qualify for the waiver.
The unlawful presence bar begins to apply once you depart the U.S., even if it is to file for an immigrant visa at the U.S. Consulate.
When Are You Inadmissible Due to Unlawful Presence [INA§ 212(a)(9)(B)(i)]?
You are unlawfully present in the U.S. if you (a) remain in the U.S. after your period of authorized stay expires (e.g. I-94 admission period expires and you have no pending application or petition to extend, change, or adjust status); or (b) enter the U.S. without being lawfully admitted or paroled (e.g. illegally cross the border without proper inspection).
Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings. The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).
The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.
Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).
When Do You Trigger the 3/10 Year Bar?
The 3/10 year bar to re-entry is triggered once you leave the U.S. This does not mean you should never the U.S. to legalize your immigration status, but you should know there are risks to your departure.
Whenever possible, you should avoid departing the U.S. for consular processing and instead apply for permanent residence within the U.S. [A common example is when a foreign national overstays his authorized period on a visitor visa, but enters into a bona fide marriage to a U.S. citizen and applies for a marriage-based green card within the U.S. Although the 3 year/10 year bar is not triggered unless he leaves the U.S., he would have to file an I-601 [INA § 212(i)] waiver if charged with another inadmissibility ground, i.e. fraud or willful misrepresentation of a material fact to gain immigration benefits by misusing the visitor visa to enter the U.S.]
The unlawful presence waiver is needed only if you are unable to adjust to permanent resident status within the U.S. and trigger the 3/10 year bar by leaving the U.S. for consular processing of the immigrant visa.
Persons in the U.S. who are ineligible to adjust status typically include:
- undocumented immigrants who entered the United States without being inspected and admitted or paroled (and do not qualify for 245(i) benefits).
- crew members aboard a ship or airplane who entered the U.S. on a C-1 visa.
- persons who entered the U.S. with a K-1 fiancé(e) visa, but never married their U.S. citizen petitioner.
- persons in the U.S. who failed to maintain nonimmigrant status and are not applying for a green card as an immediate relative of a U.S. citizen or as a K-1 beneficiary who married the U.S. citizen petitioner – unless the failure to maintain status was through no fault of their own or for technical reasons.
- a J-1 or J-2 exchange visitor who is subject to the 2-year foreign residence requirement and has not met or been granted a waiver of this requirement.
When Do You Need an I-601 [INA § 212 (a)(9)(B)(v)] Waiver Due to Unlawful Presence?
You need to file for and obtain an I-601 waiver under section 212(a)(9)(B)(v) of the INA when you seek to immigrate to the U.S. – through consular processing – before the 3/10 year unlawful presence bar expires. Getting this waiver allows you to lawfully re-enter the U.S. with an immigrant visa or K-visa without waiting outside the U.S. for 3 or 10 years.
There are certain exceptions to the unlawful presence rules. First, any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars.
In addition, section 212(a)(9)(B)(iii) of the INA excludes the following persons from accruing unlawful presence:
Minors who are under age 18. A minor who is unlawfully present while under age 18 does not accrue any time toward the 3 or 10 year bars. Upon turning 18, he begins to accrue unlawful presence toward the bars.
Asylees. No period of time in which the applicant has a bona fide asylum application counts toward the unlawful presence bars, unless he worked without employment authorization in the U.S. during this period.
Beneficiary of Family Unity Protection (FUP) under section 301 of the Immigration Act of 1990. If the FUP is approved, unlawful presence does not accrue as of the date of filing. The mere filing of the FUP application does not stop the accrual of unlawful presence.
Qualified battered spouses and children. A Violence Against Women Act (VAWA) self-petitioner who has been battered or subjected to extreme cruelty by a U.S. citizen/permanent resident spouse or parent may be exempted from the 3 year/10 year bar when there was a substantial connection between the abuse and the unlawful presence.
Victims of severe form of trafficking in persons. A trafficking victim does not accrue unlawful presence toward the 3 year/10 year bar if he demonstrates the trafficking was at least once central reason for the unlawful presence.
Tolling for good cause. By statute, foreign nationals do not accrue unlawful presence, for up to 120 days, toward the 3 year bar, while their application for extension of status (EOS) or change of status (COS) request is pending with USCIS. Certain conditions must also be met: (1) they must have been lawfully admitted or paroled into the U.S.; (2) they must have filed a nonfrivolous EOS or COS request before the authorized stay expired; (3) they did not engage in unauthorized employment.
Through a May 2009 policy, USCIS has extended this statutory exception to cover the entire period during which an EOS or COS application is pending, and to the 10 year bar.
If USCIS approves the EOS or COS request, it will be backdated to when the authorized stay expired so no unlawful presence accrues. If the request is denied, unlawful presence accrues from the date of denial. But if a timely-filed EOS or COS request is denied because it was found to be frivolous (e.g. applicant was never eligible for benefit) or because the applicant engaged in unauthorized employment, unlawful presence accrues as of the date the authorized stay expires.
Being Out of Status Doesn’t Necessarily Mean You Accrue Unlawful Presence
There are situations where you are out of status (i.e. have no lawful nonimmigrant status), but still have authorized stay and therefore do not accrue unlawful presence. For example:
F-1 students or J-1 exchange visitors who are admitted for the duration of their stay, and fall out of status, do not begin to accrue unlawful presence toward the 3 year/10 year bar until USCIS or an immigration judge finds they violated their status. [UPDATE: As of August 9, 2018, USCIS and the U.S. Department of State follow a stricter policy for calculating unlawful presence of F-1 students and J-1 exchange visitors. Under current policy, F-1 students and J-1 exchange visitors begin to accrue unlawful presence when they fall out of status. A formal decision from an Immigration Judge or USCIS finding a status violation is no longer required for unlawful presence to begin.]
According to a 2009 USCIS policy, adjustment of status applicants do not normally accrue unlawful presence — due to being out status –while their I-485 application is pending. The I-485 must have been filed properly according to regulatory requirements, before removal proceedings began. If the adjustment application is accepted by USCIS and thus technically filed, the applicant is in authorized stay and unlawful presence is tolled (stopped) while the application is pending.
Persons with Temporary Protected Status (TPS) have authorized stay beginning on the date the TPS application is filed, assuming the application is approved. If the TPS application is denied, unlawful presence begins accruing on the date the previous authorized stay expired.
What are the Limitations of the I-601 [INA § 212(a)(9)(B)(v)] Waiver?
The I-601 waiver under section 212(a)(9)(B)(v) of the INA has several limitations:
It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .
It is not a stand-alone application. The section 212(a)(9)(B)(v) waiver request is normally filed in conjunction with an immigrant, K-3 or K-1 visa application. The waiver request is submitted after the U.S. Consulate determines you are inadmissible due to the unlawful presence bar. The waiver, by itself, confers no immigration benefits, such as permanent residence or employment authorization.
Who Qualifies for the I-601 [INA § 212(a)(9)(B)(v)] Waiver?
You qualify for the I-601 [§ 212(a)(9)(B)(v)] waiver if you are the spouse or son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the unlawful presence waiver.
If you have no qualifying relative, i.e. U.S. citizen or permanent resident spouse or parent, to meet the extreme hardship requirement, you are ineligible for the I-601 immigrant waiver.
(NOTE TO NONIMMIGRANTS: A 212(d)(3)(A) nonimmigrant waiver for unlawful presence, however, is available even if you have no qualifying relative. Current USCIS and U.S. Department of State policy further allows the 3/10 year bar to run even if the person returns to the United States in nonimmigrant status with a 212(d)(3) waiver.)
Being eligible for the I-601 waiver does not necessarily mean you will get it. As with other waivers available under the INA, the §212(a)(9)(B)(v) waiver is granted in the exercise of discretion. In addition to meeting the statutory requirements, you must present evidence showing the positive factors outweigh the negative factors in their case. Even if you eligible for the waiver, the agency may still deny the request as a matter of discretion.
Where Do You File An I-601 [INA § 212(a)(9)(B)(v)] Waiver Application?
The §212(a)(9)(B)(v) waiver request is filed on a Form I-601. The current filing addresses are as follows:
A VAWA self-petitioner seeking an immigrant visa must file the waiver request with the USCIS Vermont Service Center.
An immigrant visa or nonimmigrant K visa applicant must file the waiver request with the USCIS Phoenix Lockbox.
Because direct filing addresses for the I-601 are subject to change, you must verify this information on the USCIS website.
NOTE: If the unlawful presence bar is your only ground of inadmissibility and you are applying for an immigrant visa, it’s better to file for an I-601A, Provisional Unlawful Presence Waiver, before you leave the U.S., instead of the regular I-601 waiver. You need to know the key differences between the I-601 waiver and I-601A waiver to decide which is more appropriate.
Obtaining an I-601 unlawful presence waiver requires more than just submitting the form and documents listed in the instructions. You must also explain to USCIS how the documentary evidence shows you qualify for the waiver and deserve to get it. Experienced counsel can help you prepare a legal brief and present a strong, approvable waiver application.
For more information on what to submit with your application and why seeking counsel helps, read our related article, What should you do get an I-601 Waiver for unlawful presence?
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 any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
Photo by: Elliott Brown