Question: I am subject to the 10 year bar for unlawful presence because I previously overstayed my visa. I heard that I can file for a waiver and then obtain a TN visa to work in the U.S. despite this bar. Is this true? If so, what happens to the 10 year bar while I am in the U.S. under TN visa status? Does it continue to run, or does it stop?

Reply: In 1997, the U.S. government implemented a law that penalized individuals who were “unlawfully present” in the U.S. Generally, an individual is unlawfully present in the U.S. if he/she remains in the U.S. past the expiration date of his/her I-94 document.*

For example, assume an individual has an I-94 evidencing TN visa status until October 30, 2010. If this person does not depart the U.S., extend his/her TN visa status, or file an application to change immigration status, he/she may begin to accrue unlawful presence on October 31, 2010. The penalties for unlawful presence can be quite severe.

An individual who accumulates more than 180 days but less than 1 year of unlawful presence, and who then departs the U.S. prior to the commencement of removal proceedings, is inadmissible to the U.S. for a 3 year period. INA § 212 (a) (9) (B) (i) (I). An individual who accumulates 1 year or more of unlawful presence, and who departs the U.S. prior to the commencement of removal proceedings, is inadmissible to the U.S. for a 10 year period. INA § 212 (a) (9) (B) (i) (II).

A person barred to the U.S. due to unlawful presence may still seek admission to the U.S. pursuant to INA § 212 (d) (3) by filing an I-192 waiver application. The government will evaluate an individual’s I-192 waiver application based on the following factors: (1) the risk of harm to society if the individual is admitted; (2) the seriousness of the individual’s prior immigration law, or criminal law violations; and (3) the nature of the individual’s reasons for wishing to enter the U.S. See Matter of Hranka, 16 I. & N. Dec. 491 (1978).

If an individual receives an approval of an I-192 waiver application, he/she may then apply for admission to the U.S. including under TN visa status. According to a recent letter from USCIS’ Chief Counsel, Lynden Melmed, any time spent in the U.S. under lawful nonimmigrant status pursuant to an I-192 waiver will count toward the 3 or 10 year unlawful presence bar. See L. Melmed, Chief Counsel, USCIS (01/26/2009).

For example, if an individual subject to the 10 year bar subsequently obtains a waiver and enters the U.S. under TN visa status, the 10 year bar period will continue to run even while the individual is present in the U.S. under TN visa status!

* Additional rules may apply. Please contact an attorney if you believe you have accumulated unlawful presence.