In the context of immigration law, “unlawful presence” refers to an alien who has entered into, or is staying in the U.S. illegally. A non-citizen who is found to be unlawfully present in the U.S. will usually be subjected to removal hearings (i.e., they may face deportation).
Unlawful presence can happen in different ways, such as:
- The alien was inadmissible at the time of entry into the U.S. (for example, they did not qualify for a certain visa status)
- The alien is in the country illegally due to a violation of a previous removal order (for example, they were previously removed and not allowed to return until 10 years after removal, but reentered the U.S. only 4 years later)
- They have been subject to removal due to criminal charges, but have illegally avoided immigration authorities
What Is the 3/10 Year Bar?
An alien who is found to be unlawfully present in the U.S. may be subject to removal. They may also be prohibited from re-entering the U.S. for either 3 or 10 years. This prohibition on reentry is sometimes called the 3/10 year bar.
The 3 or 10 year prohibitions on re-entry are found in the Immigration and Nationality Act. The provisions state that:
- An alien found to be unlawfully present in the U.S. for over 180 days, but less than a year, is ineligible for readmission for 3 years starting from the date of their departure (they must have departed voluntarily from the U.S. before proceedings began)
- An alien found to be unlawfully present in the U.S. for over one year, and is removed or voluntarily departs from the U.S., is ineligible for reentry into the U.S. for 10 years
For both the 3 year and the 10 year bar on reentry, the “clock” does not start running until after the alien departs from the U.S, and not the time that the unlawful presence began.
Lastly, any alien who was unlawfully present in the U.S. for a total time period of more than one year, or who was removed, and attempts another illegal re-entry may face a permanent bar on readmission to the U.S.
Are There Any Exceptions to Unlawful Presence Laws?
There are a few exceptions to the 3/10 year bar for aliens charged with unlawful presence. First, when calculating the total time of unlawful presence, no time in which the alien was under 18 years old will be taken into account. Also, aliens who have filed under a valid asylum application are exempt while their applications are pending (however, they cannot work without authorization). Lastly, certain victims of domestic abuse or human trafficking are exempt. These are known as “statutory exemptions”.
In addition to the statutory exemptions, the following categories of persons are deemed lawfully present:
- Refugees and asylees under the Immigration and Nationality Act (INA);
- Aliens who have been granted a withholding or suspension of removal under the INA;
- Aliens who have been granted cancellation of removal
- Certain categories of Haitians, Cubans, and Nicaraguans
Also, filing for an adjustment of status can sometimes prevent a departure, depending on the different dates and deadlines involved.
Are Waivers Available for Unlawful Presence as Grounds for Removal?
In some cases, the 3 or 10 year bars can be waived for an alien spouse or child of a citizen or legal permanent resident (LPR), if it can be proven that removal would result in extreme hardship to the citizen or LPR.
Additionally, an immigration judge can waive the 3 or 10 year bar on reentry based on their broad discretion and review of all the surrounding facts. For example, the bar can be waived in order to preserve the unity of a family, to promote humanitarian interests, or when it is in the public interest to do so.
Do I Need a Lawyer for Help with Unlawful Presence Issues?
Unlawful presence in the U.S. is usually grounds for removal from the country, and can result in a 3 or 10 year bar on reentry. However, there are certain instances where unlawful presence will not result in such strict consequences. You may wish to hire an immigration lawyer immediately if you have any legal issues involving unlawful presence. Your attorney can counsel you on the different options that may be available to you.