Provisional Unlawful Presence Waivers: A Potential Lifeline

 Posted on October 03,2014 in Immigration

Until very recently, non-citizens who were in the U.S. unlawfully and who wanted to become a Lawful Permanent Resident (LPR) could not apply to adjust status from within the country, even if the individual’s spouse and children were U.S. citizens. Applicants had to leave the country, allow a three or 10-year bar to take effect (depending on how long the applicant was in the United States unlawfully), and apply for an immigrant visa abroad, in addition to an I-601 Waiver of Inadmissibility for his or her unlawful presence. However, in March 2013, a new program was enacted to help non-citizens with immediate U.S. citizen relatives, which may significantly shorten the required time abroad.

What Are Waivers of Inadmissibility?

If an individual enters the United States without inspection, or overstays his or her given visa period, the individual is said to be inadmissiblein other words, he or she has committed an act that makes it more likely than not that he or she will commit other unlawful acts if admitted to the United States. To overcome this inadmissibility, the individual will need a waiver. A waiver does not deny conduct or status that led to the individual’s inadmissibility; it merely asks immigration authorities to excuse the conduct due to very real hardship that would occur if they did not.

Until March 2013, an individual would have had to apply abroad for a waiver for his or her unlawful presence in the United States, though there are different types of waivers granted—for health status, for criminal record, et cetera. Now, though, if unlawful presence is the individual’s only ground of inadmissibility, he or she may be able to file for the provisional waiver before leaving the country for the visa interview.

It is important to remember that even with a provisional waiver, the applicant must leave the country and attend an immigrant visa interview abroad. The provisional waiver simply cuts down on the time the applicant will spend abroad, as he or she will only have to wait for one approval, rather than two.

Eligibility

There are eight major requirements a noncitizen must meet in order to be considered eligible for the provisional waiver. The requirements include:

• Being at least 17 years of age;
• Being an immediate relative (spouse, minor child or parent) of a U.S. citizen;
• Having an approved immigrant visa petition (the applicant does not have to apply for an immigrant visa abroad; he or she must merely attend a consular interview abroad);
• Having a case pending with the Department of State and all fees paid;
• Being able to demonstrate that exclusion would cause extreme hardship to the U.S. citizen relative;
• Being present in the U.S. long enough to file the provisional waiver petition and provide biometrics;
• Not having been scheduled for an immigrant visa interview before January 3, 2013 (this criterion is still relevant in some cases, given the backlog of immigrant visa petitions and how far behind priority dates are for some countries); and
• Meeting all the other requirements listed under Form I-601 (the standard waiver of inadmissibility).

If an applicant is deemed ineligible, or if his or her application is turned down, there is no appeal procedure, but the applicant still may apply for the standard waiver of inadmissibility. The applicant will simply follow the old procedure, applying for the waiver and visa at the same time, which extends his or her stay abroad as he or she waits for approvals.

Get Expert Help

Negotiating the visa forms, waiver forms, and an interview abroad can be incredibly complex. The experienced Chicagoland immigration attorneys at Mevorah & Giglio Law Offices can help you get the right information, so you can minimize your time away from your loved ones. Contact us at our DuPage County, IL offices for a free consultation.