However, the question this raises is how can a person who has left the U.S. reenter to serve the bar that applies to them? Let’s say Mary entered the U.S. without permission in 2010. In 2012, Mary returned to her country to care for her very ill mother. In 2013, Mary returned to the U.S. without permission and has remained here ever since. By 2023, Mary has discharged the 10-year bar that applied to her upon leaving the U.S. in 2012. However, not only has Mary accrued additional unlawful presence upon her return to the U.S., she also triggered the permanent bar when she reentered the U.S. without permission after previously accruing one year of unlawful presence. The only way to overcome the permanent bar is to apply for and receive approval of a waiver, and in most cases, to remain outside of the U.S. for 10 years. This time bar cannot be spent in the U.S. In this scenario, the new policy clarification does not help Mary.

Where the policy can be beneficial is for a person who wants to reenter the U.S. in a employment-based nonimmigrant status such as an H-1B or L-1 visa holder. In this situation they would apply for a nonimmigrant waiver together with the nonimmigrant visa request, and if approved, could enter the U.S. lawfully. The benefit to this is the person has not triggered the permanent bar. There is a higher chance of success in requesting a nonimmigrant waiver for an employment-based visa then for example, a tourist visa, because a consular officer is likely to deny the tourist visa due to the previous immigration violations of the requestor. Using the previous example, if Mary was permitted to enter the U.S. after approval of a waiver with an H-1B visa, the time she spends in the U.S. will count towards discharging the 10-year bar. Additionally, if after discharging the bar she has a basis to become a permanent resident, such as marriage to a U.S. citizen, she will be eligible to do so.

These examples only take into consideration the unlawful presence bars and do not discuss any other circumstances that could make a person inadmissible, which would create additional hurdles and possible inability to becoming a lawful permanent resident. This area of immigration law is very detailed, and an experienced immigration attorney should be consulted to help you navigate the process.

There are some exceptions to the accrual of unlawful presence, including:

1. Unlawful presence that occurred prior to April 1, 1997 will not be considered.
2. Individuals who are under the age of 18 do not accrue unlawful presence.
3. Individuals who apply for asylum or withholding of removal do not accrue unlawful presence while their application is pending.
4. Individuals who have filed a timely and non-frivolous application for a change of status or an extension of stay before their authorized stay expired do not accrue unlawful presence while their application is pending.
5. Individuals who have been granted protection under the Family Unity program.

It’s important to note that the exceptions to the accrual of unlawful presence can be complex and nuanced, and each individual’s situation is unique. It’s always a good idea to consult with an experienced immigration attorney to determine how the rules apply in your specific case.

The Violence Against Women Act, or VAWA, was created in 1994 to protect non-citizens who have been abused by their U.S. citizen or green card holder spouse, parent or child to apply for immigration relief on their own. To be eligible for VAWA, an applicant must: 

• Be the spouse, parent or child of a U.S. citizen lawful permanent resident abuser (You may even qualify if your spouse has died, you are divorced, your spouse lost his/her residency status or your marriage was not legal but you believed it to be.);  
• You were subjected to battery or extreme cruelty by your U.S. citizen or lawful permanent resident relative; 
• You are or have resided with your abusive U.S. citizen or lawful permanent resident relative; and
• You are a person of good moral character. 

If you are applying based upon your marriage, you will also need to show that you entered into the marriage in good faith and not for the purpose of immigration benefits. If you are in this situation, or have further questions about it, please contact Transparent Justice to help you with your immigration process. You can also seek out assistance by calling the National Domestic Violence Hotline at 800-799-SAFE (7233) or 800-787-3224 (TTY). The hotline provides immediate assistance such as local resources, shelters, medical services and more. 

Deferred Action for Childhood Arrivals, or more commonly known as DACA, is an act of prosecutorial discretion taken by the U.S. government that provides relief from removal, work authorization and the ability to request permission to travel outside of the U.S. When it was created on June 15, 2012 it was only a memorandum, similar to how an office would implement a procedure. That meant that it could be changed very easily at any time. However, as of October 31, 2022 the final rule for DACA is in effect. 

To be eligible for DACA, an applicant must show that:

• You were born on or after June 16, 1981
• You came to the United States before you turned 16 
• You have continuously resided in the United States since June 15, 2007, and until filing your request for DACA 
• You were physically present in the United States on June 15, 2012, and at the time of filing your request for DACA 
• You had no lawful immigration status on June 15, 2012, and at the time of filing your request for DACA
• You are currently enrolled in school, have graduated from a U.S. high school or the equivalent, or are an honorably discharged veteran 
• You have not been convicted of a felony, 3 or more misdemeanors or a significant misdemeanor
• You do not pose a threat to national security 
• You warrant a favorable exercise of discretion

Concepts such as continuous residence and whether a misdemeanor is significant are legal terms of art that an attorney can help you understand. If you think you might be eligible for this form or relief, or have further questions about it, please contact Transparent Justice to help you with your immigration process.