Expansion of Provisional Unlawful Presence Waiver

The United States has some fairly harsh penalties for those who are present in the country without valid immigration status. Most significantly, those who are in the U.S. without authorization are barred from applying for permanent residency until they stay outside the country for a considerable period of time. Fortunately, a waiver is available for those who are subject to the unlawful presence bar.

The Unlawful Presence Bar

Anyone with more than 180 days of unlawful presence (time spent in the U.S. with no valid status) is subject to a three-year inadmissibility bar.  If the period of unlawful presence is longer than a year, the bar increases to ten years.

The inadmissibility bar is triggered upon leaving the U.S. The Catch 22 that immigrants face is that many are required to leave the U.S. to obtain permanent residency at a consulate abroad. When they do, however, they trigger a lengthy bar to reentering the country, requiring them to wait outside the U.S. until the inadmissibility bar passes.

The Traditional I-601 Waiver

Alternatively, immigrants subject to the unlawful presence bar are eligible to file Form I-601, requesting a waiver of their inadmissibility. Traditionally, this meant that immigrants would have to leave the U.S., triggering the inadmissibility bar, then file the I-601 waiver, and wait outside the country for the waiver to be approved. Because of consular processing times, immigrants often waited for months for their waiver to be approved. Then, if the waiver was denied, the immigrant was forced to remain outside the U.S. for the entire period of the inadmissibility bar—up to ten years.

As one might imagine, the anxiety caused by the prospect of departing the U.S. for an uncertain period of time was overwhelming to those seeking to gain permanent residency in the U.S. As such, many chose to remain in the U.S. without obtaining permanent residency, despite being eligible to do so, rather than risk a potentially lengthy separation from their families and lives here.

The Provisional Waiver

In 2013, the U.S. Citizenship and Immigration Services (“USCIS”) modified the procedure for obtaining a waiver for unlawful presence inadmissibility.  By creating the provisional unlawful presence waiver, USCIS allowed certain classes of intending immigrants to file waiver applications from inside the U.S.

The benefit, of course, is that an applicant for a waiver based in unlawful presence would know whether or not the waiver had been approved before even triggering the inadmissibility bar.  Assuming the waiver application is ultimately approved, the intending immigrant still must depart the U.S. to apply for an immigrant visa.  As such, the waiver is provisional in nature—effective only upon ultimate approval of the immigrant visa at the consulate abroad. Nonetheless, the provisional waiver offers considerable assurance that the immigrant will be able to overcome the unlawful presence inadmissibility bar and return to the U.S. without considerable delay.

Provisional Waiver Eligibility

Two sets of regulations control the provisional waiver process. The first set, effective since 2013, limits provisional waivers to intending immigrants who are “immediate relatives” of U.S. citizens or certain special immigrants. Thus, to be eligible for a provisional waiver, the immigrant must be a spouse, parent, or minor and unmarried child of a U.S. citizen. Additionally, the applicant must demonstrate that his or her U.S. citizen spouse, parent, or child would suffer extreme hardship if the applicant was not allowed to quickly return to the U.S.

In August 2016, though, the provisional waiver for unlawful presence was expanded. After that date, all immigrants are eligible for a provisional waiver, regardless of the basis for the immigrant visa application. So, family-based, employment-based, and special immigrants are now eligible to apply for provisional waivers. Further, the rule expands the list of qualifying relatives to include legal permanent resident spouses and parents. Please remember that the extreme hardship requirement still exists under the expanded rule. This is a significant expansion of the provisional waiver program which will benefit thousands of intending immigrants.

All provisional waiver applicants must have an approved immigrant visa petition (I-130, I-140, or I-360), must have a current priority date, and must have paid the immigrant visa application fee to the National Visa Center prior to filing their waiver application.

Restrictions 

The provisional waiver is exclusively available to those with qualifying relatives who are applicants for an immigrant visa. As such, anyone without a qualifying relative or anyone seeking a nonimmigrant visa is not eligible for the provisional inadmissibility waiver at this time.

Lastly, remember that the provisional unlawful presence waiver is available only for the inadmissibility caused by unlawful presence. It is not available for other inadmissibility grounds such as fraud or for criminal convictions.

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Bronx immigration attorney Delmas Costin can help you understand your rights and defend your future. contact The Law Office of Delmas Costin at (718) 618-0589 for experienced, confidential support.