If you’ve been living in the United States undocumented it can make a real difference as to how or whether you are able to move forward into Lawful Permanent Residency (“LPR”). The law states that if a person lives in the United States undocumented for more than 6 months but less than a year, then leaves the United States, that person has a 3-year bar. The law continues from there and states that if a person lives in the United States undocumented for more than 1 year, then leaves the United States, that person has a 10-year bar. Let’s talk about how these bars can inhibit the ability of an intending immigrant to become an LPR.

A person who enters the United States with a visitor visa, or otherwise lawfully, and has overstayed their legally allotted time starts to accrue what is called unlawful presence under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Once an intending immigrant has accrued unlawful presence under IIRIRA, there are certain bars to the intending immigrant becoming an LPR. The intending immigrant may need a waiver for these bars and would require a family member who qualifies to provide that waiver. However, having entered lawfully may act as a catalyst that allows the intending immigrant to adjust to LPR status without leaving the United States, if you have certain Immediate Relatives, as defined in immigration law, applying for you. If the intending immigrant is able to adjust their status in the United States, then the intending immigrant would not have to leave the United States to get their LPR status. Since the law requires the person that accrued the lawful presence to leave the United States after accruing the unlawful presence to trip the bar, then adjusting in the United States, without having to leave, would not trip the bar. If the bar is not tripped, then it relieves the intending immigrant of the requirement to obtain an approved waiver from the qualifying family member for the accrual of unlawful presence. But what if the intending immigrant entered the United States without documentation?

As an example, a person who entered the United States undocumented 15 years ago and they have a family member who can now petition them. Barring the intending immigrant qualifying for one of the few small exceptions in the law, the intending immigrant will have to leave the United States to consular process. Once the intending immigrant leaves the United States to consular process, they will have tripped the bar for having entered and stayed unlawfully in the United States for more than six months to a year or more. The intending immigrant will then require a waiver. It’s as if their legal body remained in their country of origin when their physical body came to the United States. In order for them to be given LPR status, you have to send their physical body to their legal body and reunite those bodies. The person will have to leave the country and obtain their LPR via consular processing. Fortunately, at this time, there is a Provisional Waiver (I-601A) that can allow the intending immigrant to obtain a waiver while waiting in the United States before leaving for their consular process appointment. Once the waiver is approved, the intending immigrant would have attend an interview at the consulate and the consulate would then approve them, and then they would come back in lawfully, as an LPR.

If the intending immigrant comes in lawfully and accrues 6 months or more of unlawful presence then the intending immigrant leaves to have their final interview to become an LPR, they are going to trigger either a three year or a 10 year bar, depending on how much unlawful presence they accrued. They would have to have a qualifying family member prove that the qualifying family member will suffer extreme hardship, if the intending immigrant is unable to remain or return to the United States. It is possible to still get residency in the United States, even if you have lived here for many years, undocumented.

For more information on Living Undocumented In The United States, 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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