Unlawful presence usually occurs for two reasons: (1) The person entered the United States illegally, therefore the do not have a legal presence in the United States (2) A person has stayed past the date they were required to leave on their visa. In the first scenario, the person would be barred from reentering the United States for 3 years. However, in the second situation the person has 180 past their date they were supposed to leave before they become barred.
The most common reason this occurs is because someone is already past their time and are barred, they therefore see no reason to leave since it will take so long to gain access to another visa. This is dangerous thinking, because if they are caught they can be immediately deported. However, it is not entirely over at that point. This person may apply for a waiver of unlawful presence.
The waiver of unlawful presence can have this barred period “waived” or forgiven. If approved the person must return to their country of origin and reapply for an immigration visa.
Waiver of a Criminal Record
Applying for a green card, or an immigration visa, in the United States, with a criminal record, is very complicated. However, if the right precautions are taken it is possible to have your criminal record “waived” in relation to applying for a visa. However, if a crime makes you “inadmissible” to the United States, you will not be granted access.
The following are examples of crimes that it may be possible to be waived:
- prostitution
- unlawful commercialized vice
- moral turpitude
- possession of 30 grams or less of marijuana
- multiple convictions with an aggregate sentence of confinement of at least 5 years or..
- a serious criminal offense in a case where you asserted immunity from prosecution, left the United States and refused to submit to the jurisdiction of a U.S. court
While these above crimes may see you eligible, there is a good amount of work and other eligibility requirements that will apply. The best way to determine if you may be eligible is to seek the advice of an immigration attorney.
Waiver of Inadmissibility for Fraud or Misrepresentation
A foreign national who has been committed of fraud or misrepresents a material fact for the purpose of obtaining immigration benefits during a visa application, entry to the U.S. or adjustment of status is inadmissible. However, there may be waivers to have this situation forgiven by the U.S. government. This depends entirely on what your specific situation is, the best way to determine if you may be eligible for this waiver is to contact our immigration team.
