There are generally three options through which aliens are able to obtain permanent legal status in the U.S.: 1). An employment petition; 2). A petition filed by an immediate family member; or 3). A special petition such as political asylum or cancellation of removal (deportation). However, in general, aliens will fall in one of four categories of eligibility:

1). Aliens who entered the U.S. with a visa and are eligible to get their residency in the U.S. through a family petition (even if the visa has expired or the visa was not valid).

2). Aliens who entered the U.S. without inspection or visa and are eligible to obtain residency through family or employment because they are 245(i) eligible. (A person with a labor certification or a visa petition filed on their behalf on or before January 14, 1998 is qualified for the benefits of §245(i). A person who has a labor certification or visa petition filed on their behalf after January 14, 1998, but on or before April 30, 2001, is also qualified for the benefits of §245(i) but only if they were physically present in the U.S. on the date of enactment of the new law (December 21, 2000)

3). Aliens who entered the U.S. with a valid U.S. visa, with a current, un-expired I-94 (small white card issued at the time you entered the U.S., which tells you how long you are allowed to remain in the U.S.). These aliens are eligible to apply for any other category of visa. The visa approval will depend on the person meeting the specific qualifications required by the particular visa.

4). Aliens who came into the U.S. without inspection or aliens that came with a visa and the visa has expired, may be eligible to apply for residency in the U.S., however, their adjustment of status petition may require a waiver. A waiver is a “pardon” from the U.S. government that says that even though you have violated an immigration regulation you will be granted a green card under special circumstances. These waivers are generally granted to individuals with special family connections to the U.S. These waivers are Currently commonly issued at a U.S. consulate abroad.

The Three And Ten Year Bars to admission into the U.S

Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") of 1996 created bars to admissibility for aliens who were "unlawfully present" in the U.S. Under INA 212(a)(9)(B)(i)(I), aliens who have been "unlawfully present" in the United States for more than 180 but less than 365 days, and then depart from the U.S., are inadmissible for the next three years. Under INA 212(a)(9)(B)(i)(II), aliens who are "unlawfully present" in the United States for more than 365 days, and then depart from the U.S., are inadmissible for the next ten years.

This 1996 law bars certain aliens who accumulate a certain period of “unlawful presence” in the U.S., and then left the country, from becoming permanent residents for a period of time unless they first obtain a waiver.

Aliens who accumulate 180 days or more of unlawful presence after April 1, 1997, and then left the country, cannot return to the U.S. for 3 years. Aliens who accumulate one year or more of unlawful presence after April 1, 1997, and then left the country, cannot return to the U.S. for 10 years. Aliens who illegally return to the U.S. without seeking a waiver, must wait outside the U.S. for a period of 10 years before they can apply for a waiver. The same rule applies to aliens who illegally reenter the U.S. after being deported.

Aliens who commit fraud or a material misreprentation are barred from the U.S. for life unless they obtain a waiver.

A waiver may be obtained by submitting form I-601 to the USCIS and demonstrating that the person’s U.S. citizen or permanent resident spouse or parent(s) would suffer “extreme hardship” unless they were granted a waiver.

What is unlawful presence?

"Unlawful presence," has a very specific meaning. An alien begins to accrue unlawful presence only when:

1. His/her I-94 has expired and he/she failed to timely file a non-frivolous request for extension or change of nonimmigrant status. 
   If he/she has timely filed an extension of stay or change of status, then she does not accrue any unlawful presence, even after her I-94 expires, for as long as the petition remains pending. If that petition is ultimately approved, then she never acquires any unlawful presence. If it is ultimately denied, then she accrues unlawful presence starting on the date the denial notice is issued; or
2. USCIS or an Immigration Judge finds that the alien has violated his/her status.

For certain nonimmigrant statuses (F-1 and J-1), I-94s are endorsed "D/S," meaning "duration of status." Since there is no specific expiration date, aliens holding "D/S" I-94 cards do not begin to accrue unlawful presence unless USCIS makes an affirmative finding that the alien has violated his or her status.[3] For example, if an alien holding F-1 status with an I-94 marked D/S applies for a change of status to H-1B, and the change of status is denied because USCIS finds that the alien has violated his F-1 status, then the alien begins to accrue unlawful presence upon the denial of his change of status application, even though the I-94 never "expired." Similarly, if an Immigration Judge makes a determination of a status violation in a removal proceeding of an F-1 or J-1 nonimmigrant who is admitted D/S, unlawful presence begins to accrue even though the I-94 never "expired."

Any nonimmigrant, no matter what his status, who is found by USCIS or an Immigration Judge to have violated his status, begins to accrue unlawful presence upon the date of that finding, even if his I-94 has not expired. Again, USCIS would generally only make such a finding in connection with an application for a benefit, and an Immigration Judge would make this determination in proceedings.

Finally, it is important to note that "unlawful presence" is only relevant to accrual of time toward the three and ten year bars to admission. It is not a ground for removal from the U.S. (although aliens who are unlawfully present are also out of status, which is a ground for removal). Individuals do not trigger the bar to admission until they actually leave the United States.

Individuals exempted from accruing unlawful presence

Not all individuals who are out of status are accruing unlawful presence. Some individuals out of status do not accumulate unlawful presence and therefore are not subject to the three and ten year bars to admissibility. These individuals belong to the following categories:

Note that the prefix ULP means ‘UNLAWFUL PRESENCE’.

1. A minor under the age of 18 does not accrue unlawful presence for purposes of the three and ten year bars until the day after her 18th birthday.
2. F-1 students who are admitted for the duration of their stay do not begin to accrue unlawful presence until the USCIS or an immigration judge finds that they violated their status.
3. An individual with a properly filed, pending application for adjustment of status or registry does not accumulate unlawful presence as of the date the application is properly filed. The accrual of unlawful presence is tolled until the application is denied.
4. If the individual then files a motion to reopen or reconsider, the mere filing of the motion will not stop the accrual of unlawful presence. However, if the motion is successful and the benefit granted, the individual will be deemed to not have accrued unlawful presence during the pendency of the motion. If the motion is successful but the benefit is still denied, unlawful presence will only accrue from the date of the last denial, as long as the initial request was timely and non-frivolous.
5. If the denial of the underlying petition, upon which an Extension of Status/Change of status (EOS/COS) is based, is appealed to the Administrative Appeals Office, the mere filing of the appeal will not stop the accumulation of unlawful presence. However, if the petition denial is reversed on appeal, and EOS/COS subsequently granted, no unlawful presence will be deemed to have accrued between the denial of the petition and request for EOS/COS and the subsequent grant of the EOS/COS.
6. A non-immigrant with a pending EOS/COS request who departs the U.S. while the request is pending does not accrue ULP, so long as the request was timely and non-frivolous, and the individual did not work without authorization. -. An individual granted Family Unity Program (FUP) benefits under the LIFE Act Amendments of 2002 § 1504 does not accrue unlawful presence.
7. An individual who files an application for Temporary Protected Status (TPS) will not accrue ULP while the application is pending provided it is ultimately approved, and the authorized period of stay will continue until TPS is terminated. If the application is denied, however, or if prima facie eligibility is not established, unlawful presence will begin on the date the individual’s previous authorized period of stay expired.
8. An individual granted voluntary departure (VD) does not accrue unlawful presence. ULP stops accruing on the date an individual is granted VD and resumes on the day after VD expires if the individual has not departed the U.S.
9. An individual granted an administrative or judicial stay of removal, either automatic or discretionary, does not accumulate ULP. The issuance of a stay, however, does not erase prior periods of ULP.
10. An individual granted deferred action does not accumulate ULP. Accrual of ULP stops on the date an individual is granted deferred action and resumes the day after deferred action is terminated. The granting of deferred action does not cure any prior periods of ULP.
11. An individual granted withholding of removal (or deportation) does not accrue ULP. The accrual stops on the date of the grant and continues through the period of the grant.
12. An individual with a pending bona fide asylum application does not accrue unlawful presence for purposes of the three and ten year bars unless he works without authorization.
13. A beneficiary of Family Unity Protection (FUP) under the Immigration Act of 1990 § 301 is protected from accruing ULP for purposes of the three and ten year bars. If the FUP application is approved, ULP is deemed to stop as of the date of filing. However, the filing of the FUP application by itself does not stop the accrual of ULP. Nonetheless, A grant of FUP protection does not cure prior periods of ULP.
14. Qualified battered spouses, parents and children are protected from accumulating ULP. An approved VAWA self-petitioner, and her children, can claim an exception from the three and ten year bars when there are substantial connections between the abuse, the ULP, and her departure from the U.S.
15. Victims of severe form of trafficking in aliens do not accumulate ULP towards the three and ten year bars. Similar to VAWA beneficiaries, a trafficking victim must demonstrate that the trafficking was at least once central reason for the ULP.
16. A non-immigrant with a pending extension of status (EOS) or change of status (COS) request, according to the statute, does not accrue ULP for a period of up to 120 days for the purpose of the three year bar only, so long as: (1) the application was timely, (2) the individual was lawfully admitted or paroled into the U.S., and (3) the individual did not engage in unauthorized employment. By operation of Service policy, however, this exception has been extended to cover the entire period during which an EOS or COS is pending, and to the ten year bar.

So what is the Obama administration intending to change in the processing of unlawful presence waivers ?

The Obama administration announced on January 6th , 2012,  that it will be issuing new regulations for how unlawful presence waivers will be processed for certain immediate relatives of U.S. citizens who are filing immigrant visa applications abroad. Specifically, the new procedure will allow

these individuals to file for a provisional unlawful presence waiver in the U.S. If approved, they will still have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. To receive a provisional waiver, they will still need to show that a lengthy bar from the U.S. would cause their U.S. citizen spouse or parent “extreme hardship.”

Currently, many relatives of U.S. citizens and lawful permanent residents face unnecessary and dangerous bureaucratic hurdles when they apply for lawful permanent residence (“green card”). In order to be granted permanent residence, these applicants are required to travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. But departure from the U.S. triggers a 3- or 10-year bar to re-entry for many applicants—specifically those who have been unlawfully present in the U.S. for more than 180 days.

Individuals subject to this re-entry bar may apply for a waiver (using DHS Form I-601; see 8 U.S.C. 1182(a)(9)(B)(v)) so that they do not have to face years of separation from their family. To qualify, they must demonstrate that their U.S citizen or permanent resident spouse or parent would experience “extreme hardship” if the waiver is not granted. But under the current process, individuals can only apply for the waiver in the home country, after having had an initial interview at the consulate. The decision on the waiver often takes weeks, months or even years to be completed. Meanwhile, families are separated, and the spouses and children of U.S. citizens and lawful permanent residents are forced to endure potentially dangerous situations in the home country until the waiver is granted and they can return to the U.S. Immigration law provides that U.S. citizens and lawful permanent residents can apply for “green cards” for their foreign-born spouses and children. But the lengthy delays and risks in the current waiver procedure discourage many family members from completing the process of legal immigration. Family members have been assaulted or killed while waiting for waivers to be reviewed.

What will the new process be?

The new procedure will allow certain immediate relatives of U.S. citizens apply for waivers of the unlawful presence bars while remaining in the U.S. If the individual is found eligible, USCIS will grant a provisional waiver. He or she will still have to depart the U.S. and visit a U.S. consulate abroad to apply for an immigrant visa. During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. If other grounds of inadmissibility are found, the individual would need to submit another waiver application, if eligible, while abroad. In many cases, the provisional waiver will reduce the wait period abroad and the separation from the applicant’s family by several months or years.

Individuals will still need to meet the extreme hardship standard established in existing law to obtain a waiver. The January 6 notice states that USCIS does not intend to modify the standard.

Who is left out of the new process?

According to the January 6 notice, the new process will not apply to family members of lawful permanent resident petitioners. It will also not include immediate relatives if their qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. These individuals will still need to apply under the existing procedure (departing the country first and applying for the waiver while abroad). There is no valid reason not to apply the same procedure to these individuals whose spouses and children face the same bureaucratic delays, obstacles and dangers when required to wait abroad for their waiver adjudications.

The new procedure will apply only to individuals who are subject to the 3- and 10-year bars for unlawful presence. Individuals who are subject to other grounds of inadmissibility are not affected under the new process and will still have to depart the U.S. before applying for any waiver.

When will the new regulations and process be implemented?

The new provisional waiver procedure has not yet taken effect. The notice issued on January 6 announces the government’s intent to issue a proposed regulation at a future date. Next, DHS will issue a Notice of Proposed Rulemaking (NPRM) that will include a proposed regulation governing the waiver process and will invite public comment. The notice states that the new waiver process will not be implemented until a final rule is issued and the change becomes effective.

Compiled by:

Japheth N. Matemu

Immigration Attorney

The Matemu Law Office P.C

Raleigh, NC

www.matemulaw.com

sources:

1. Department of Homeland security
2. American Immigration Lawyers association publications

Disclaimer

The information contained in this document is general in nature and subject to change at any point in time. As such, it may not necessarily apply to all situations. Therefore, under no circumstance it should be construed as legal advice. Please ensure that you consult with an attorney regarding your specific situation before starting a legal process.