If a person accrued more than 180 days but less than one year of unlawful presence in the U.S., he or she is inadmissible to the U.S. for three years following departure. One year or more of unlawful presence results in a 10-year bar of inadmissibility after departure.   The bar is triggered when the person with unlawful presence leaves, and one normally pictures him or her waiting the time out in some other country.  But what if a person is legally admitted to the U.S. during the period of the bar?  Can they wait it out here?

Not too long ago someone filed a lawsuit to address that very question, because the underlying law does not specify where the period of the bar must be spent.  Two federal judges found that the U.S. is as good a place as any, and the USCIS changed its policy to clarify this is indeed the case. 

But how does that occur? One strategic pathway is to obtain a discretionary “212 (d) (3) waiver of inadmissibility,” along with a non-immigrant visa such as an H-1B or O-1.  The law allows the government to grant a temporary waiver and admit the applicant in many circumstances, and they often do.  An individual, even if subject to, say the 3-year bar, may apply at a consulate abroad for the waiver and non-immigrant visa.  If granted, they could then enter the U.S. on the nonimmigrant visa, and at the end of their authorized period of stay, say, three years, the period of inadmissibility would also end, allowing them to seek permanent residence. The situation with a ten-year bar is more challenging, but not impossible.

A second pathway depends as much on luck as on strategy but worked for a recent client of ours whose country participates in the Visa Waiver Program (VWP).  She became subject to the bar due to overstay, exited to Mexico and was re-admitted several months later on the VWP because the port of entry didn’t check the records and didn’t ask questions about her previous stays in the U.S.  Though she was still subject to the ten-year bar, her lawful admission meant she could serve the bar in the U.S.  When the ten-year period of the bar was over, her U.S. citizen daughter was able to sponsor her for a green card.

The bottom line is, a bar to admissibility doesn’t necessarily keep you from being admitted! 

Read about the 212 d 3 waiver of inadmissibility here and USCIS' announcement the policy change here .