I-601A

How to Overcome the 10-Year Bar with a 212(a)(9)(B) Unlawful Presence Waiver

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If you’ve been told you’re barred from entering the United States for 3 or 10 years because of unlawful presence, you’re not alone and there is hope. Many people who overstayed their visa, fell out of status, or entered without inspection can still reunite with their families or return legally through a 212(a)(9)(B) waiver, also called the unlawful presence waiver. At The Messersmith Law, we have successfully helped countless families overcome the 3- and 10-year bars.

What Is Unlawful Presence?

Unlawful presence is time spent in the US without valid immigration status after your visa expired or your authorized stay ended. According to INA §212(a)(9)(B):

  • If you stay more than 180 days but less than 1 year after your authorized period and then leave, you face a 3-year bar.
  • If you stay 1 year or more, you trigger a 10-year bar from reentering the US.

Once the bar is imposed, you’re considered inadmissible and cannot receive a visa or green card until it expires unless we help you obtain a waiver or successfully remove the bar if it was placed in error.

What Is a 212(a)(9)(B) Waiver?

The 212(a)(9)(B) waiver allows certain applicants to overcome the 3 or 10 year bar caused by unlawful presence. It’s filed using Form I-601 (Application for Waiver of Grounds of Inadmissibility) or Form I-601A (Provisional Unlawful Presence Waiver). To qualify, you must prove that your US citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” if you’re not allowed to enter or remain in the US.

What Counts as “Extreme Hardship”?

USCIS looks for more than ordinary emotional or financial hardship. Examples include:

  • Your family member’s serious medical condition requiring your care
  • Psychological or emotional hardship of family separation
  • Financial dependency or job loss due to your absence
  • Safety concerns or lack of medical care abroad
  • Educational disruption for family members

Who Can Apply for a 212(a)(9)(B) Waiver?

You may be eligible if:

  • You accrued more than 180 days of unlawful presence.
  • You have a US citizen or lawful permanent resident spouse or parent (qualifying relative).
  • You are otherwise admissible to the US.
  • You can show that your qualifying relative would suffer extreme hardship without you.

Common Scenarios That Trigger the 10-Year Bar

  • Overstaying a student (F-1) or visitor (B1/B2) visa
  • Failing to maintain H-1B or J-1 status
  • Working without authorization
  • Being denied adjustment of status and leaving the U.S. afterward
  • Departing after unlawful presence to attend a visa interview abroad

Even if your overstay was unintentional, it still counts as unlawful presence in most cases.

Difference Between I-601 and I-601A Waivers

Waiver TypeFiled FromWhen Used
I-601Outside the US.For people already subject to a bar after leaving
I-601A (Provisional Waiver)Inside the US.For people who will leave for an immigrant visa interview abroad

We can help determine which option applies to your situation and prepare both the waiver and supporting documentation to avoid unnecessary delays or denials.

FAQ: Unlawful Presence and Waivers

Q1. How long does a 212(a)(9)(B) waiver take to get approved?
Typically 8–12 months, but timelines can vary.

Q2. Can I reapply if my waiver was denied?
Yes.

Q3. What happens if I don’t apply for a waiver?
If the bar was applied in error, we can help you challenge and remove it from your record. Otherwise, you’ll remain inadmissible for up to 3 or 10 years and will not be able to legally obtain a US visa or green card during that period.

Get Our Legal Help for Your Unlawful Presence Waiver

If you’re facing a 3 year or 10 year bar or have been told you’re inadmissible under INA §212(a)(9)(B), contact us today. With the right legal argument and evidence, we can help you win your case.

Call 305-515-0613
Email info@messersmithlaw.com
Same-Day Consultations Available

We’ve helped countless individuals and families overcome unlawful presence bars and return legally to the US Let us help you do the same.

How to overcome Section 212(a)(9)(B)

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​If you’ve been told that you’re inadmissible under INA Section 212(a)(9)(B) due to unlawful presence, you’re likely worried about the possibility of a 3 year or 10 year bar from returning to the United States. These bars apply when someone overstays their authorized period of stay and then departs the US which triggers long term consequences that affect your ability to obtain a visa or green card. But these situations can often be challenged or waived, depending on your circumstances. If you’re in this position, don’t assume you’re out of options. Many of our clients have successfully overcome this problem with the right legal strategy.

Why These Bars Are More Common and Sometimes Wrong

The 3 year bar applies to individuals who were unlawfully present for more than 180 days but less than one year, while the 10 year bar applies to those who were unlawfully present for one year or more. These penalties are triggered once you leave the US, and they can derail visa applications and family-based immigration cases. Unfortunately, we’ve seen many situations where USCIS or CBP made a mistake, showing someone overstayed when, in fact, they left on time or had legal status. In those cases, we’ve helped clients track down records, identify CBP errors, and correct the government’s mistake, allowing them to avoid a bar entirely.

Even when the unlawful presence is accurate, there are still legal remedies available. We frequently assist clients in applying for the I-601A Provisional Unlawful Presence Waiver, which allows them to request forgiveness before leaving the country for a visa interview. These waivers are discretionary and are granted based on a showing that refusal of admission would cause extreme hardship to a qualifying US citizen or permanent resident spouse or parent. It’s important to understand that this waiver only covers unlawful presence, so if there are other issues such as prior fraud, criminal convictions, or removal orders, additional waivers may be required.

How We Help Clients Overcome Unlawful Presence Bars

Whether you’re facing an incorrect inadmissibility finding or need to build a strong waiver case, we know how to help. We’ve worked with clients who were wrongly barred due to database errors and successfully challenged those determinations. For those who did accrue unlawful presence, we’ve guided them through the I-601A process, helping them gather the right documentation to prove hardship and ultimately secure approval. We understand how to spot problems before they cause a denial, and we’re here to help you avoid painful delays or permanent bars.

Talk to an Immigration Lawyer Before You Take the Next Step

If you’re facing a 3 year or 10 year bar under INA 212(a)(9)(B), don’t guess your way through it. Let us help you fix it the right way. Whether you’re inside or outside the US, we’ll help you understand your options, correct any errors in your record, and apply for a waiver if needed. Call our office today at (305) 515-0613 or email info@messersmithlaw.com to schedule a consultation. We’ll review your immigration history, develop a strategy, and fight to get you back on the path to legal status in the United States.

I-601A Provisional Unlawful Presence Waiver

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On January 3, 2013, the U.S. Citizenship and Immigration Services (USCIS) published a final rule on provisional unlawful presence waivers. I-601A applications may be submitted to USCIS beginning March 4, 2013. This rule allows certain immediate relatives of U.S. citizens who are physically present in the United States to file provisional unlawful presence waivers prior to traveling abroad for consular processing of their immigrant visa applications.

  • Who is Eligible for an I-601A Waiver
  1. You may be eligible for a provisional unlawful presence waiver if:
  2. You are physically present in the United States;
  3. You are at least 17 years of age at the time of filing;
  4. You are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen;
  5. You have an immigrant visa case pending with the U.S. Department of State (DOS), for which you have already paid the immigrant visa processing fee; and
  6. You believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.
  • Who is NOT Eligible for an I-601A Waiver
  1. You are not eligible for a provisional unlawful presence waiver and your application will be rejected or denied if:
  2. You do not meet one or more of the requirements listed above;
  3. You have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS;
  4. You are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A;
  5. You have been ordered removed, excluded, or deported from the United States;
  6. You are subject to reinstatement of a prior removal order;
  7. DOS acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or DOS cancelled or rescheduled the interview on or after January 3, 2013.
  8. You do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion;
  9. USCIS has reason to believe that DOS may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.
  •  If Your I-601A is Denied USCIS is unlikely to initiate removal proceedings or refer provisional unlawful presence waiver applicants to ICE when USCIS approves or denies the waiver request or if the applicant withdraws his or her I-601A application.
  •  Application Process

If you are in the United States and not in removal proceedings, an I-601A provisional waiver application can be made using Form I-601A.  After filing, you will be required to submit to biometrics collection which includes fingerprints and photographing.  After the i-601A is approved, you must depart the United States for an immigrant visa interview abroad.

  • Standard for I-601A Approval

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.