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.
USCIS has announced that, beginning August 29, 2016, more persons will be eligible to seek an I-601A provisional waiver of unlawful presence. Eligibility for the I-601A waiver will be extended to spouses and children of lawful permanent residents. Eligibility will also extend to the spouses and children who accompany or follow to join the principal immigrants.
The full details of this expansion are available here.
Before this expansion, only spouses and children of U.S. citizens were eligible to apply for the I-601A provisional waiver of unlawful presence. Beginning August 29, 2016, spouses and children of lawful permanent residents, or “green-card” holders, will also be eligible to apply for the I-601A waiver.
The I-601A provisional waiver provides a significant advantage over the regular I-601 waiver. The main advantage is that the applicant may apply for the I-601A provisional waiver before leaving the United States to attend the interview for an immigrant visa at a U.S. Consulate or Embassy. As a result, the amount of time that the applicant spends outside the United States is greatly reduced, from a matter of months or years in some cases, to a matter of weeks in the majority of cases.
Please remember that this expansion of the I-601A provisional waiver of unlawful presence will not take place until August 29, 2016.
Applications for waivers are complex. I strongly suggest that you work closely with an experienced immigration attorney to handle your waiver application. I have years of experience handling many waiver applications with success. Please give me a call at the office at (734) 369-3131 or email me at email@example.com for more information.
If you entered the United States without permission, you might be eligible to apply for a waiver of unlawful presence. Depending on the circumstances of your situation, you might be able to obtain the waiver, and then obtain permanent resident (green card) status. Best of all, you might be able to remain in the United States while your application is pending. If you are approved for the waiver, you would travel to a U.S. consulate outside the United States for an immigrant visa, and then you would return to the United States with the visa and become a permanent resident. Your time outside the United States, in most cases, is approximately 2 weeks.
In order to be eligible to apply for this type of waiver, you must have either a spouse or parent who is a U.S. citizen. You must also meet certain other requirements in order to be eligible. For example, certain criminal convictions might make you ineligible to apply for this type of waiver.
In order to be granted the waiver, you would need to convince U.S. immigration officials that the denial of the waiver would result in an “extreme hardship” to your U.S. citizen spouse or parent. The question of what qualifies as “extreme hardship” is complicated. For more information about extreme hardship, please see my previous postings on the subject:
The process of obtaining a waiver of unlawful presence is complex. In order to avoid problems and to have the best chance of success, you should work with an experienced immigration attorney. I have handled many immigration waiver cases and I have a strong record of success. I would be glad to speak with you about your case. Please contact my office for details. Thank you.
I just received good news from the USCIS Administrative Appeals Office (AAO). The AAO agreed with me, and reversed a denial issued by the USCIS Detroit Field Office.
My client has been in the United States for many years. He entered the United States legally, under a public interest parole. That parole authorized my client to reside in the United States for an indefinite period of time. So, he has never been in the United States without authorization.
As we had noted to the Detroit Field Office, and as the AAO stated, my client has a low level of literacy, suffers from post-traumatic stress disorder (PTSD), suffers from depression, and has suffered a traumatic brain injury.
My client has been convicted of two theft crimes. Because of those convictions, my client was deemed to be inadmissible to the United States. My client’s mother, a permanent resident of the United States, had begun the process many years ago to help my client to become a permanent resident.
We submitted an application for permanent residence, along with an application for a waiver of inadmissibility, to state the reasons why USCIS should waive his inadmissibility, because a denial of the waiver would result in an extreme hardship to my client’s mother.
The USCIS Detroit Field Office agreed that we had shown that the denial of the waiver would, indeed, result in extreme hardship to my client’s mother, who is the sole caretaker of a household of 8 persons. Nevertheless, the Detroit Field Office denied the waiver application, stating that my client didn’t deserve to become a permanent resident.
We submitted an appeal to the AAO, stating that the Detroit Field Office made a mistake by denying the waiver on discretionary grounds. The AAO agreed with us, stating that, “[w]hen considering the totality of the circumstances, we find that the positive factors in this case, including the Applicant’s family ties, length of residence in the United States, and hardship to himself and his family members if he is removed, outweigh the negative factors, and he merits a favorable exercise of discretion.”
We are very thankful to the AAO for their reasoned decision. I am hopeful that my client will soon become a permanent resident.
A couple of days ago, I wrote the first of two posts about “extreme hardship” in immigration law. Today, in the second post, I write about the question of exactly what “extreme hardship” is, and how we can show it.
In many immigration cases, we must show extreme hardship to the spouse or parent of the person applying for the immigration benefit. In some cases, we may show extreme hardship to the child of the applicant. The applicant’s qualifying relatives – spouses, parents, and (in some cases) children – must be either U.S. citizens or lawful permanent residents.
As we stated in the first post, we need to show harships of both separation and relocation.
“Extreme hardship” is open to interpretation. U.S. government officials may consider many different types of hardships. Many of the most common hardships involve financial concerns, medical conditions, educational goals, psychological or emotional issues, family ties, and conditions in the location where the applicant would be living if the waiver is not granted. In order to explain the hardship to the qualifying relatives, we must imagine that the applicant for the waiver is living in his or her home country.
Financial concerns: An assessment of the loss of income to the household as a result of the applicant’s residence outside the United States, and the ripple effects that this loss can have on the well-being of the qualifying relatives.
Medical conditions: The effects on the qualifying relatives of the potential lack of access to medical care in the country of relocation, and the potential loss of access to medical care in the United States due to loss of income or loss of insurance coverage.
Educational goals: The effects of the applicant’s absence on the education of qualifying relatives, including the loss of educational opportunities in the country of relocation, or the loss of opportunities in the United States due to financial or time constraints.
Psychological or emotional issues: The stress and anxiety that result from separation of qualifying relatives from the applicant, and the stresses and pressures that would accompany the qualifying relative’s relocation to another country.
Family ties: The qualifying relative’s connections to relatives in the United States, vs. connections to relatives in the country of relocation.
Country conditions: Aspects of life in the country of relocation, including housing conditions, sanitation, educational opportunities, safety, social or political unrest, violence, environmental risks.
An application for a waiver based on a showing of extreme hardship requires significant careful preparation, planning, and documentation. I have extensive experience in preparing these applications, and a strong record of success.
In many immigration cases, in order to help a client to obtain permanent resident, or “green card” status, we need to establish something called “extreme hardship” to a qualifying relative, such as the applicant’s spouse or parent who is a U.S. citizen or permanent resident.
For example, if you entered the United States without permission, without a visa, and without presenting yourself to U.S. immigration officials when you entered, then you might not be eligible to obtain your green card while you are in the United States. You would need to go to a U.S. Consulate in your country of origin and apply for an immigrant visa. If you are approved, then you receive the immigrant visa and enter the United States as a permanent resident.
The problem, however, is that if you are living in the United States without permission for 1 year or more, and then you leave the United States, you will be subject to the “10-year bar,” which means that you will not be permitted to enter the United States until you have spent 10 years outside, unless you obtain a waiver. If you are granted the waiver, then you are permitted to enter the United States without the need to spend 10 years outside.
In order to obtain the waiver, we must convince the U.S. immigration officials that the denial of the waiver will result in “extreme hardship” to your spouse or parent who is a U.S. citizen or a permanent resident. In order to obtain the waiver, we must imagine that we don’t have the waiver, and that you, the applicant, must spend 10 years outside the United States, living in your home country.
Then, we must imagine two different scenarios:
(1) Your spouse or parent who is a U.S. citizen or permanent resident remains in the United States and is separated from you for 10 years.
(2) Your spouse or parent who is a U.S. citizen or permanent resident lives with you, outside the United States, in your home country for 10 years.
We must show that BOTH of these scenarios will result in “extreme hardship” to your spouse or parent. If we convince U.S. immigration officials that BOTH of these scenarios will result in extreme hardship, then you will be granted the waiver, and you will not be required to spend 10 years outside the United States.
In Part 2, we will explore the question of exactly what is “extreme hardship” and how we can show it.
DHS has published the new provisional waiver rules. USCIS will begin to accept applications for provisional waivers on March 3, 2013.
The new waiver process allows certain people to apply for waivers in inadmissibility while remaining in the United States. If the waiver is approved, then the applicant goes abroad for an immigrant visa interview.
We expect that the U.S. Government will soon publish a new procedure that will enable certain persons to apply for waivers while they remain in the United States.
Although we cannot be sure, we believe that the new procedures will be announced very soon, possibly as early as Monday. We do not yet know when the new procedure will take effect, but we believe that the new procedure will take effect soon.
As soon as the new procedure is announced, we will have more information about eligibility requirements and procedures.
On January 6, 2012, the U.S. Department of Homeland Security (DHS) proposed changes in how some waiver applications will be processed. Please note that at this time, the changes are not yet in effect. We do not know when the changes will take effect, but we are hopeful that they might take effect later this year. Please consult with a knowledgeable immigration attorney before taking any action.
The Current Process
If you entered the United States without permission, and you have a spouse or a parent who is a U.S. citizen, in most cases you must leave the United States and apply for an immigrant visa in another country, usually your home country. Unfortunately, under U.S. immigration laws, when you leave the United States, you are barred from re-entering the United States for a certain period of time, usually 10 years (and in certain cases, 3 years). You may apply for an immigrant visa at the U.S. Consulate in another country, but you must also apply for a waiver of your unlawful presence in the United States. In order to be granted the waiver, you must establish that it would be an extreme hardship for your spouse and/or parent if you are not allowed to return to the United States. The process can take a long time, and sometimes requires you to be outside the United States for a year or more.
The Proposed Changes
If you have a U.S. citizen spouse and/or a U.S. citizen parent, and if you need a waiver only for your unlawful presence in the United States, DHS has proposed to allow you to apply for a provisional waiver while you are still in the United States. If DHS grants the provisional waiver, then you still must travel outside the United States and apply for an immigrant visa and the waiver at the U.S. consulate in the other country.
We hope that the proposed change will do a couple of good things for you, if you are eligible:
1. The proposed change will allow you to apply for the provisional waiver and see if DHS approves the provisional waiver before you leave the United States.
2. The proposed change will shorten the length of time that you will need to be outside the United States.
Please consult with a knowledgeable immigration attorney before taking any action.
Some potential applicants for permanent residence face certain barriers to being approved. Some of the most common roadblocks include entering the United States without permission, or remaining in the United States beyond the expiration of a visa. Some people qualify to ask for a waiver of the grounds that make them ineligible for permanent residence.
This area of immigration law has some complexities, and it is best to consult with an immigration lawyer about your particular situation.
Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.