Question Submitted: Unlawful Presence and Nonimmigrant Waiver

QUESTION: I overstayed a U.S. visitor visa as a minor.  I have returned back to my native country.  Am I eligible to apply for a nonimmigrant waiver?  Or do I have to wait for the 10 year bar to be over?

ANSWER:  Under the U.S. immigration law, individuals do not accumulate unlawful presence as minors (under 18 years of age).  Therefore, any time that an individual overstays his/her U.S. visitor visa while under the age of 18 shall not be taken into account in determining the period of unlawful presence in the U.S.

Following the 18^th birthday, however, individuals who have overstayed their authorized period of stay begin to accumulate unlawful presence.  If an individual remains in the U.S. over six (6) months but less than one (1) year beyond his/her 18^th birthday, then that individual has accumulated enough unlawful presence to face a 3-year bar to returning to the U.S. if s/he subsequently departs the U.S. 

If an individual remains in the U.S. for over one (1) year following his/her 18^th birthday, then that individual has accumulated enough unlawful presence to face a 10-year bar to returning to the U.S. if s/he subsequently departs the U.S.  That is, unless the inadmissible individual applies for and receives a nonimmigrant waiver.

Nonimmigrant waivers for unlawful presence are provided for at INA § 212(d)(3).  Individuals can apply for these waivers at any time during the applicable bar and do not have to wait for the 3 or 10-year bar to expire.  Upon the expiration of the applicable bar, a nonimmigrant waiver is no longer required for unlawful presence.

The first thing to do in this type of situation is calculate whether or not there is an unlawful presence violation, as any time before the 18^th birthday will not be considered.  If there has been an unlawful presence violation, then the next step is to evaluate whether a nonimmigrant waiver is likely to be approved.   

Read more about successful nonimmigrant waiver applications.

INA § 212(a)(9)(B) – Unlawful presence

INA § 212(d)(3) – Nonimmigrant waivers