Here is a copy of an article I wrote for the Johnson County Bar Letter:
One of the most important – and troublesome – concepts in immigration law is that of “unlawful presence.” A person is “unlawfully present” if he or she is present in the United States “after the expiration of the period of stay authorized by the Secretary of the Department of Homeland Security or is present in the United States without being admitted or paroled.” Therefore, a person who enters the U.S. with a non-immigrant visa and stays beyond the date specified on his or her I-94 entry document is “unlawfully present,” as is a person who enters the U.S. without being inspected or paroled (i.e., “undocumented immigrants”).
Three-Year and Ten-Year Bars to Admission
If a person accrues unlawful presence, he or she may be “inadmissible” to (1) enter the United States, (2) obtain a visa, or (3) “adjust status” to that of a U.S. Lawful Permanent Resident (LPR). A person who has been unlawfully present in the United States for more than 180 consecutive days but less than one year and voluntarily departs the U.S. prior to removal proceedings is inadmissible for three years following his or her departure. Similarly, a person who has been unlawfully present for more than one year and voluntarily departs the U.S. is inadmissible for ten years following his or her departure. Although the application of these bars may be somewhat mitigated by certain exceptions and waivers, the consequences for unlawfully present individuals may be quite severe.
Several important points should be noted. First, the length of time that a person is unlawfully present in the U.S. is extremely important, because neither of the bars apply to periods of unlawful presence shorter than 180 days. Second, both bars apply only if an unlawfully present person departs the United States (although such persons may still face other immigration consequences). Third, the three-year bar applies only to individuals who voluntarily depart the U.S. before the commencement of removal proceedings.
For example, imagine that Ruby enters the U.S. in 1990 without being inspected or paroled and marries a Mark, a United States citizen, in 2013. During these 23 years, she departs and re-enters the United States four times, successfully eluding U.S. Customs and Border Patrol each time. After Mark and Ruby are married, Mark decides to file an I-130 “Petition for Alien Relative,” so that Ruby can become an LPR. Because Ruby is ineligible to stay in the United States while the application process plays out – “adjustment of status” requires that a person have been inspected and admitted – Ruby must depart the U.S., obtain an immigrant visa at the appropriate U.S. consulate abroad, and travel with that visa to a U.S. port of entry to seek admission as an LPR. Unfortunately, Ruby’s departure from the U.S. triggers the ten-year bar to admission. Unless an exception applies or a waiver is available, Ruby will be inadmissible and unable to re-enter the United States for ten years.
Waiver of Inadmissibility
Fortunately, the Department of Homeland Security (DHS) may waive the bars to admission if (1) the inadmissible person (“applicant”) is the spouse, son, or daughter of a U.S. citizen or LPR (“qualifying relative”), and (2) he or she can show that extreme hardship to the qualifying relative will result if admission is denied. However, “extreme hardship” is not easily defined, and showing it can be a difficult endeavor. Notably, hardship to the applicant is irrelevant, as is hardship to the applicant’s children. Although DHS will not consider direct hardship to a U.S. citizen or LPR child, such hardship may be considered if it would result in hardship to a qualifying relative.
DHS will consider certain factors when determining extreme hardship; these include (1) the presence of an LPR or U.S. citizen spouse or parent in the U.S., (2) the qualifying relative’s family ties outside the U.S., (3) conditions in the country to which the applicant would relocate, (4) the financial impact of departure, and (5) significant conditions of health.
Under previous law, waiver applicants could not apply for a waiver until after they appeared for an immigrant visa interview abroad and a Department of State consular officer determined that they were inadmissible to the United States. Applicants were forced to remain outside of the U.S. – separated from their families – during the entire lengthy process. However, as of March 4, 2013, a “Provisional Waiver” is available for waiver applicants who are spouses, children and parents of U.S. citizens. Such applicants may apply for provisional unlawful presence waivers before they depart the U.S. for their immigrant visa interviews at a U.S. embassy or consulate abroad. According to U.S. Citizenship and Immigration Services, “the new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.”
Clearly, Ruby would wish to avoid the application of the ten-year bar. She is prima-facie eligible for the provisional waiver, because she is the spouse of a United States citizen. However, she must show that Mark will experience extreme hardship (1) if she is not admitted to the United States, or (2) if he accompanies her to her country of citizenship. As mentioned above, such a showing can be difficult – but certainly not impossible – to accomplish. She might also qualify for one of the exceptions to the unlawful presence statute; these exceptions are a subject for further discussion.
USCIS guidance on unlawful presence may be found here: http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF