A person who has entered with a visitor visa, overstayed their permission for more than one year, and then left the country may be able to come back to the United States and re-enter with a visitor visa again if the government does not notice their intention or previous extended stay. In this example, the person has a bar because they exited after overstaying and accruing unlawful presence, but the entry with a visitor visa will not have triggered a permanent bar. They will have entered lawfully, and they would be able to live out their bar here in the United States.

There could be a fraud problem, if they go to adjust status. A 10-year or fraud bar can be cured by certain qualifying family members showing extreme hardship, but the law says that if that same person re-enters the country or attempts to re-enter the country, undocumented, without curing that bar, they have a permanent bar. This bar also lasts 10 years but it does not have a waiver during that time. While you are inside the United States, the 10 years do not run. You would have to leave the United States and stay outside the United States for 10 years, accumulate the documentation to prove that you have been out for 10 years, and then attempt to apply for legalization from the outside.

Similarly, if a person enters the United States without documentation and remains in the United States for more than a year and leaves the United States, that person has a 10-year bar, for which there is a waiver. However, if that same person returns to the United States or attempts to return to the United States without documentation and before curing their bar, then they will have a permanent bar also, for which there is no waiver during the 10 years of the bar.

Generally, to accrue unlawful presence, you must be over 18. However, the permanent bar has an exception to that. I’ve seen a 12-year old who has a permanent bar because their parents brought them here at six years old and they stayed until they were 10, went back to Mexico, and came back when they were 12, all undocumented. There is also an aggregate part to this bar; the one-year stay does not have to be all at once. One must be very careful about their entries and exits in order to not bar themselves from future legalization of lawful permanent residency.

For more information on Undocumented Multiple Entries & Exits, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (505) 407-0066 today.

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