Waiver for Unlawful Presence Approved

Approval of nonimmigrant waiver submitted under INA § 212 (d) (3) (A) (ii) to overcome client’s inadmissibility due to unlawful presence. Client came to U.S. with parents in early 1990’s. The family overstayed their visas for ten years before departing the U.S. for Canada. They were unable to re-enter the U.S. for a period of ten years due to their accumulation of unlawful presence.

Unlawful presence is defined as being in the United States after the period of stay authorized. If a foreign citizen is unlawfully present for six months, and then departs, he or she will be barred from admission to the U.S. for 3 years. If a foreign citizen is unlawfully present for a year or more, he or she will be barred for 10 years.

A foreign citizen barred from the U.S. due to unlawful presence may obtain a temporary waiver of this ground of inadmissibility under INA § 212 (d) (3) (A) (ii) and be permitted to enter the U.S. In adjudicating § 212 (d) (3) (A) (ii) waivers, the following three factors are considered: (1) The risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant’s immigration or criminal law violations; and (3) the nature of the applicant’s reasons for wishing to enter the United States.

There was no risk of harm in this case as the client had no criminal background. While unlawful presence is a serious immigration violation, the client’s violation was mitigated because he had accumulated only one year of unlawful presence after his 18th birthday. Unlawful presence does not apply to children under 18. Client also had legitimate reasons to visit the U.S. His employment required training in the U.S. and the client had several close family members residing in the U.S.