Provisional Waivers of Unlawful Presence

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.

Removing Conditions on Permanent Resident Status

If you became a permanent resident based on marriage to a U.S. citizen or permanent resident, and if you obtained your permanent resident status before your second wedding anniversary, then your status is “conditional permanent resident.”  Your green card is valid for 2 years.  You will need to file a petition to remove those conditions, to make the transition from “conditional permanent resident” to “permanent resident.”  This process is referred to as “removing the conditions” on your permanent resident status.

If you remain married to, and living with, the person who filed the petition for your 2-year green card, then you and your spouse should file the petition to remove conditions during the 90-day window of time leading up to the expiration of your 2-year green card.

If you are no longer married, or if your spouse is not willing to sign the petition, you may file the petition without your spouse’s signature.  There are several reasons for filing the petition without your spouse’s signature:

(1) Your spouse is deceased.

(2) You and your spouse have divorced.

(3) During your marriage, your spouse abused you, battered you, or subjected you to extreme cruelty.

(4) The termination of your permanent resident status would result in an extreme hardship.

If you are filing the petition without your spouse’s signature, then the time deadlines that are generally applicable to a joint filing do not apply to you. If your spouse is not signing the petition, then you could file earlier or later than the normal 90-day window of time.

After you file the petition, you will receive a receipt from USCIS on heavy paper, tinted green.  This receipt will state that your permanent resident status is automatically extended for a period of one year.

The petition to remove conditions on permanent resident status often involves complex legal and factual issues.  In order to have the best chance of success, and to avoid unnecessary delays in the process, I suggest that you work with an experienced immigration attorney on this process.

I have successfully handled many of these petitions.  I would be happy to work with you on your case.

3 Different Ways to Permanent Residence Based on Marriage

Many of my clients are persons who are either engaged to be married, or are already married.  Usually, one of the persons is a U.S. citizen or lawful permanent resident of the United States, and the other person is a citizen of another country and would like to obtain lawful permanent resident status in the United States.

For many persons, there are generally 3 different ways to move forward in the process of obtaining permanent resident status.

Fiance/Fiancee Visa:  For persons who are not yet married, one option is an application for a fiance/fiancee visa.  Please note that only U.S. citizens may file a fiance/fiancee visa petition.  The fiance will attend a visa interview at the U.S. Consulate in the home country or in a country where the fiance has permission to reside.  Upon approval, the fiance travels to the United States, and then must marry the U.S. citizen petitioner within 90 days of entering the United States.  If they do not marry, then the fiance must depart the United States.  As soon as they marry, then the fiance may apply for permanent resident (green card) status.

Immigrant Visa:  Another option is for the persons to legally marry, either in the United States or in any country in which the marriage may be legally performed.  After the legal marriage, the U.S. citizen or lawful permanent resident spouse files a petition for his/her spouse.  The spouse will attend a visa nterview at the U.S. Consulate in the home country or in a country where the fiance has permission to reside.  Upon approval, the spouse travels to the United States and enters with the immigrant visa.  The date that the spouse enters the United States is the date that the person becomes a lawful permanent resident (green card status).

Adjustment of Status:  A third option, for certain persons who are present in the United States, is for a married couple to apply for adjustment of status in the United States.  “Adjustment of status” is a term that means that the applicant is applying to become a lawful permanent resident of the United States while the person is in the United States.  This procedure, if successful, means that the applicant does not need to attend an interview at a U.S. Consulate outside the United States.

Each of these three options has certain advantages and disadvantages.  Moreover, each of these options is only available to certain persons who meet the requirements and for whom the option is beneficial to them.

I have considerable experience with each of these 3 pathways to lawful permanent resident status.  I would be glad to communicate with you about these options.

Removing conditions on permanent residence

If you became a Lawful Permanent Resident through your spouse, and if you were married for less than two years on the day you became a permanent resident, then your permanent residence is “conditional,” which means that it is valid for two years.  You must submit a petition to remove the conditions on your permanent residence.

Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.