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Avoiding an Illegal Presence Bar

Many persons who are in the U.S. illegally eventually become eligible to become Permanent Residents as Immediate Relatives of an American citizen. Immediate Relatives, for immigration purposes, are spouses of citizens, unmarried children of citizens (if the child is under 21 years old), and parents of citizens (if the citizen is at least 21 years old).

If the person entered the U.S. legally, even if she or he later lost their legal status, they may be eligible to become Permanent Residents without leaving the U.S. through a process called Adjustment of Status. If the person, however, entered the U.S. illegally, without having been inspected, admitted or paroled into the U.S., they may still be eligible to become Permanent Residents but will have to travel outside the U.S. to process their immigrant visa at a U.S. Consulate abroad.

This person could face a bar on returning to the U.S. of three or ten years which is triggered when they leave the U.S. after having been here illegally more than six months (three-year bar), or more than one year (10-year bar).

This is called an illegal presence bar and anybody who leaves the U.S. after being here illegally for the periods stated may face it.

The good news for Immediate Relatives of U.S. citizens is that, for them only, there exists a Provisional Waiver of the potential bar which can be applied for before leaving the U.S. so that, once the waiver is granted, they may return to the U.S. despite the illegal presence.

There is one aspect of the Provisional Waiver which may cause some confusion, and that is that the waiver is a hardship waiver and, although it is available to all Immediate Relatives, the hardship must be to a citizen who is either a spouse or a parent, not a child.

As in many other immigration matters, this is an area where an applicant should seek an attorney's advice and assistance. At Garcia, Miranda, Gonzalez-Rua, P.A., our dedicated Hollywood, FL immigration lawyers understand the many challenges and dilemmas facing our non-citizen communities. We can assist you in navigating these matters and secure legal solutions as swiftly and efficiently as possible.

Contact our firm today to explore your options.


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At Garcia & Miranda, PA, we have more than 50 years of combined legal experience to our name. Our team is comprised of legal professionals who draw on unique backgrounds – including former experience as an immigration prosecutor, immigration judge, and Managing Attorney of the CLS. We have prevailed in some of the toughest immigration matters due to our creativity, patience, and genuine compassion. We are truly invested in the success of your case.