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Unlawful Presence

THE LAW AND YOU

WRITTEN BY: Narisara P. Jongjarearn -Tasanont, Attorney at Law

Today I will discuss a serious consequence that can occur when someone overstays while visiting in the United States or when a student fails to depart from the United States after completion of his or her studies.  Many of us have family and friends from Thailand that come to visit us here in the United States and each time they come they are issued an I-94 that indicates how long they are allowed to stay.  This document used to be issued at the airport and indicated how long the visitor is authorized to stay here.  Currently this document is not issued at the airport but is available online.

When people do not leave when they are supposed to and continue to stay in the United States past the time authorized, unlawful presence results which will subject the person to a bar from reentering the United States until a certain amount of time has passed.  For example, if someone comes here as a tourist and is allowed to stay for 3 months, but continues to remain here past 3 months and then departs the United States for their foreign home country, he or she will be barred from reentering the United States again until another 3 years passes.  If that person overstays for 1 year or more, he or she could be barred for 10 years.

These bars apply even though the person may already be the beneficiary of petition for legal permanent residency.  So if an application is pending, then the applicant should not travel abroad until the application is approved and a green card is issued. However, new laws in place may provide that travel can be done in some circumstances with an advance parole.

A waiver can be used in some circumstances where the person is a beneficiary to an immigrant petition and where extreme hardship can be shown, but it usually doesn’t eliminate the entire bar, however it may reduce the time in half, if it is approved. Although this is generally true, getting a waiver approved can still be done.  It all depends on the facts and circumstances of each particular case and how effectively and persuasively your attorney can draft a waiver argument.  Personally, I am proud to say that I have had success in this area multiple times.  In all cases, the person was ordered to remain outside the United States for more than 10 years and I was able to successfully prepare waivers on behave of my clients to enable them to reenter the United States without having to stay in Thailand for the 10 plus years.

Another thing is that the I-94 card should never be destroyed.  The I-94 serves as proof that a person has entered the United States legally.  This is an important piece of evidence to show legal entry or departure from the United States that is timely. It is also necessary when applying for a green card. If you entered recently and were not issued an I-94, you can get it on line at the CBP website.  Call me for more information about all your immigration needs.

Narisara P. Jongjarearn-Tasanont works out of her law office in Los Angeles. She is also the Executive Director of the Thai American Citizens Alliance.  She is an active member of the State Bar of California, and the American Immigration Lawyer’s Association.  You can contact her at 323-664-7131 or 323-704-6355 with your immigration questions. The contents of this article are not intended as individualized legal advice.

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