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Unlawful presences and waivers of inadmissibility

On Behalf of | Feb 28, 2023 | Criminal Defense

People from other countries who wish to start new lives in New Jersey and around the country usually seek permanent residence. Green cards allow them to live and work legally in the United States, but obtaining one can be extremely difficult if they have violated immigration laws in the past. Entering the country illegally or remaining after a visa has expired is called unlawful presence by the immigration authorities, and it can lead to a denial of permanent residence and even deportation.

Unlawful presence

The consequences of remaining in the United States illegally are more severe when unlawful presences last for more than 180 days. An unlawful presence of 180 days or less is considered a minor infraction, and an immigrant in this situation can simply apply for a new visa to renter the country. An immigrant with an unlawful presence that lasts for more than 180 but less than a year will be prohibited from entering the United States for three years, and unlawful presences lasting a year or more carry a 10-year ban.

Waivers of inadmissibility

The immigration authorities sometimes issue unlawful presence waivers to immigrants who would otherwise be barred from reentering the country for three or 10 years. To qualify for one of these waivers, an immigrant must show that a qualifying relative would face “extreme hardship” if they were not allowed to return. Qualifying relatives are parents or spouses who are U.S. citizens or permanent residents. The immigration authorities do not consider children to be qualifying relatives. Advocacy groups offer advice and legal assistance to immigrants seeking unlawful presence waivers, and they also provide criminal defense representation for immigrants.

Immigration rules change frequently

The nation’s immigration laws are the subject of fierce political debate, new or revised rules and guidelines are usually introduced when control of Congress shifts from one party to the other. Fortunately, for immigrants seeking permanent residence, the laws dealing with unlawful presence waivers have softened in recent years. Immigrants can now apply for a provisional waiver before leaving the United States. Obtaining one of these waivers would greatly increase their chances of being allowed to return.