Unlawful presence and bars to admissibility
Waiver of the 3/10-Year Bar for Unlawful Presence
The 3/10-year bars arise under INA §212(a)(9)(B) when a person accrues unlawful presence in the U.S. and then departs: 180+ days triggers a 3-year bar; 365+ days triggers a 10-year bar.
Two main waiver paths
- I-601A Provisional Unlawful Presence Waiver
- Filed inside the U.S. before departing for the visa interview.
- Requires an approved I-130/I-140/I-360, NVC case creation, and intent to consular process.
- You must prove “extreme hardship” to a U.S. citizen or permanent resident spouse or parent (qualifying relative). Children are not qualifying relatives for hardship, though their needs can support the spouse/parent’s hardship.
- If approved, you depart for the interview with reduced risk of a long separation. It waives only §212(a)(9)(B)—not other inadmissibility grounds.
- I-601 Waiver (after consular refusal)
- Filed after the consulate finds inadmissibility.
- Same extreme hardship standard and qualifying-relative rules.
- Appropriate if the I-601A was not available or was denied.
Key limits and common add-ons
- The waiver does not forgive the permanent bar for illegal reentry after removal or after 1+ year aggregate unlawful presence (§212(a)(9)(C)).
- It does not waive fraud (§212(i)) or most criminal grounds (§212(h)); those require separate waivers.
- Prior removal orders may also require I-212 consent to reapply.
- I-601A approval does not grant status, work authorization, or travel permission; it’s only a pre-approval of the unlawful-presence waiver.
Evidence that wins
- Detailed declarations from the qualifying relative; medical, psychological, educational, and financial documentation; country-conditions reports; proof of ties and responsibilities; expert letters showing inability to relocate or exceptional hardship if separated.
Strategy
Front-load evidence, confirm no other bars, and coordinate timing with NVC and the medical/interview. A well-planned waiver turns a triggered bar into a reunification path. Our office builds hardship records, vets all grounds, and guides you from filing through visa issuance.
