If you entered the United States without inspection and have become eligible for a family-based permanent resident (green card) status, you might need to leave the United States and go to your home country for an interview at the consulate or embassy. There are some exceptions to the requirement to leave the United States. The officer who conducts the interview can order you to stay in your country for 3 years (if you have been in the U.S. without authorization for more than 180 days but less than a year), or 10 years (if you have been in the U.S. without authorization for more than a year). These penalties are known as 3-year and 10-year unlawful presence bars. If you are found inadmissible to return to the U.S., you can apply for a waiver, which is like asking for legal forgiveness. If your application is approved, your 3-year or 10-year bar will be waived.
The law allows you to apply for a waiver after your I-130 petition is approved and before you go overseas for an interview in your home country. Getting waivers approved is complicated, and we recommend that you have the assistance of an experienced immigration attorney to help you through the process. If your waiver is approved, you can leave the U.S., go to the interview, and if the consular officer approves your immigrant visa, you can return to the U.S. and become a lawful permanent resident.
Now, the question is, are you eligible for a provisional unlawful presence waiver?
- Are you at least 18 years old?
- Are you physically present in the U.S.?
- Do you have a qualifying immediate relative to petition for you? This would be a U.S. citizen or permanent resident who is either your spouse, your parent if you are unmarried and under 21, or your child if he or she is 21 or older.
- Can you prove that your permanent resident or U.S. citizen spouse or parents will suffer extreme hardship if you are inadmissible to return to the U.S.?
- Are you inadmissible on criminal, fraud, or other grounds?
If you answered yes to the first four questions and no to the last one, you probably may apply for a waiver. If you are in removal proceedings, you can apply for the waiver only if your case has been administratively closed. We advise you to apply as soon as possible before your case is re-calendared.
Please note that, in order to be eligible for this type of waiver, you must have a spouse or parent who is a U.S. citizen or lawful permanent resident (green card holder).
The most important aspect of the waiver is to demonstrate that your qualifying relative or relatives will suffer extreme hardship if they remain in the U.S. without you or if they follow you to your home country for the duration of the 3-year or 10-year bar. The relative who will suffer extreme hardship does not need to be the same one who petitions for you.
The following are some examples of hardship your qualifying relative might experience if he or she stays in the U.S. without you during the 3-year or 10-year bar: He or she depends economically on your income and will not be able to provide for the household if you are overseas, he or she has a medical condition and depends on your care, he or she cares for a family member and will be unable to continue caring for that person without your support, or you are the caregiver of your qualifying relative’s child or children, and your relative cannot afford childcare if you are overseas.
In the case that your relative follows you to your country, you will need to show, for example, that your relative’s medical condition will be poorly treated or too expensive to treat in your country, your relative does not know the language of your home country, he or she is the primary caretaker of a sick family member within the U.S., your relative will not be able to work or will likely receive minimum wage in your country, he or she will be unable to continue his or her education in your country, he or she has children from a previous relationship who will not be allowed to live with you or visit due to custody issues, he or she has debt in the U.S. that cannot be paid from your country, or, last but not least, your country has a high rate of violence or is at war. You may think of other types of financial, medical, emotional, or security-related hardship for your waiver application.
To date, our office has obtained 47 waiver approvals, including 3 applications that USCIS initially denied, but later approved on appeal. All 47 clients received waiver approvals. Although we cannot predict whether USCIS will approve a waiver application, we have a strong record of success.
For some people who wish to become permanent residents of the United States, their best option is to do “consular processing” – attending an interview at a U.S. Consulate in another country. For example, if you live outside the United States, or if you are not eligible to apply for permanent residence from inside the United States, you might be eligible for consular processing at a U.S. Consulate – most likely the consulate in your own country.
Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.