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COVID-19 Court Update 04/02/2020 

Unlawful Presence Bars & Waivers

Helping You Return to the United States

In 1996, the Illegal Immigrant Reform and Responsibility Act (IIRARA) established bars set for a certain period of time, whereby an individual who was in the United States illegally and left the country would be barred from reentering the United States for three years, for ten years, or permanently.

The act is meant to punish individuals for staying in the United States illegally and protect national security to some degree, but there are many instances where this bar is unrealistic and would very negatively affect the lives of those involved for no just reason. For these, waivers may be available.

How the Bar Is Determined

The length of the bar is determined by how long the individual has been in the United States illegally before departing the country. This unlawful period starts when say a temporary visa expires, or, if entry was illegal in the first place, it would start right then.

The differences between the three-year, ten-year, and permanent ban are as follows:

  • Three-year bar: given to those in the United States illegally more than 6 months but less than 12
  • Ten-year bar: given to those in the United States illegally for 12 months or longer
  • Permanent bar: unlike the previous two, these cannot be waived once they are given

This bar stars the moment that the illegal immigrant leaves the country. Often, they leave the United States to travel to a consulate or embassy in an effort to establish U.S. citizenship, but the bar can begin anyway upon the moment of that departure. This determination can be unfair and unwarranted.

Obtaining Your Waiver to the Bar of Re-Entry

The main reason waivers exist for these is for the possible circumstance that barring an individual from the United States for a period of 3-10 years would drastically diminish the lives of his or her family. The legal term for this is what we call “extreme hardship”, and it needs to be proven for the waiver.

Extreme hardship could be shown if the bar would devastatingly interfere with any of the following:

  • Education – losing the opportunity, interrupting a program, etc.
  • Health – lack of availability in home country, urgency of condition, etc.
  • Financial considerations – decline in standard of living, future employability, etc.
  • Personal considerations – ties to the community, loss of close relatives or spouses, etc.

These factors can be easily shown in a court of law, and with the help of a New Jersey immigration attorney, you may be able to waive that bar and avoid 10 years of separation from your life in the U.S. Call our offices today at (800) 909-8129 to get started with a consultation.

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Common Questions

  • Q:I live in the US and I am marrying a US citizen. How can I get a green card and become a permanent resident?

    A:Assuming you have entered the US with a visa or are protected by an old law called 245i, you may be eligible to adjust status to receive a green card from within the US. If you have been illegally present for more than 6 months, you cannot travel until the green card is in hand. Current processing time is about 5-7 months.

  • Q:I am a fiancé(e) of a US citizen and I am living outside the US. How can I enter the US to marry?

    A:Your fiancée must apply for a Fiancée Visa, also known as the K-1 Visa. The visa is for parties who have physically met within the past two years, have an intent to marry, and can document a relationship together. The visa is only for those who are residing abroad and cannot be used if the alien is in the US. The application is filed from within the US and when approved, will be forwarded to the American Consular where the alien fiancée will apply for the visa and be interviewed by an officer - usually about 8-12 months from the date of filing.

  • Q:I live outside the US and I married a US citizen. How can I come to the US to live?

    A:To enter the US after a marriage to a US Citizen, you would go through Consular Processing. Paperwork would be filed in the US and forwarded to the embassy abroad to schedule an interview. The processing time frame from start to finish is between 9-11 months, depending on the embassy abroad. The process is document-intensive and requires careful attention to detail.

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