Protecting Your Status with a Provisional Unlawful Presence Waiver

Protecting Your Status with a Provisional Unlawful Presence Waiver

The Illegal Immigration Reform and Responsibility Act (IIRAIRA) created a three-year bar and 10- year bar on re-entry into the United States for various immigration violations. Will you be applying for the provisional unlawful presence waiver to protect your status? At the Verma Law Firm, our immigration lawyers serve San Jose, the Silicon Valley, and the surrounding areas with knowledgeable and reliable legal counsel.

If you have any questions regarding provision unlawful presence waivers, please give us a call today to request your free initial appointment: (408) 560-4622.

The Conditions of the Waiver

The three-year bar applies to individuals who have been unlawfully present in the United States for a continuous period of more than 180 days (six months), but less than one year, and who voluntarily depart the U.S.

The 10-year bar applies to individuals who have been unlawfully present in the U.S. for an aggregate period of one year or more and who voluntarily depart the U.S.

Unlawful presence can either begin:

  1. When the period of authorized stay expires; or,
  2. After entry to the U.S. without inspection. Both the 3-year bar and the 10-year bar are triggered when the individual leaves the United States.

Exceeding Unlawful Presence Time Limits

An Immigrant who accrues unlawful presence (more than six months) cannot apply for a green card in the US through the adjustment of status process. Instead, the Immigrant must interview for their green card at a consulate abroad. However, once the Immigrant leaves the United States, the Immigrant will trigger the 3-year or 10-year bar of re-entry and need to apply for a waiver. The Immigrant must obtain a waiver of inadmissibility to overcome the unlawful presence bars before they can return to the United States.

How Does the Provision Waiver Benefit Me?

In March 2013, USCIS created the Provisional Unlawful Presence Waivers process. The provisional unlawful presence waiver process allows the Immigrant to apply for the I-601 waiver for unlawful presence (whether 3 or 10-year bar) ahead of time, while still in the US. The Immigrant stays in the US with their spouse or family member while the waiver is being decided.

When the waiver is approved, the Immigrant travels to the consulate abroad and attends his/her interview at the U.S. Consulate. This new process was developed to reduce the time the Immigrant is abroad and shorten the time that U.S. citizens and lawful permanent residents are separated from their immediate relatives. If you require assistance, please do not hesitate to reach seek counsel first from a knowledgeable San Jose immigration lawyer to begin the process.

Eligibility Requirements

To be eligible for a provisional unlawful presence waiver the Immigrant must fulfill the following conditions:

  1. The Immigrant must be 17 years of age or older.
  1. The Immigrant must be an immediate relative of a U.S. citizen or lawful permanent resident (spouse, child (unmarried and under 21), or parent of a U.S. citizen).
  1. The Immigrant must have an approved Form I-130, Petition for Alien Relative.
  1. The Immigrant must have a pending Immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS Immigrant visa processing fee (IV Fee).
  1. The Immigrant must be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
  1. The Immigrant must be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  1. The applicant is only inadmissible on unlawful presence (not on criminal or misrepresentation grounds).

Demonstrating Extreme Hardship

To qualify for the provisional unlawful presence waiver, the Beneficiary must show that his qualifying relative in the U.S. would suffer extreme hardship if the relative could not be reunited with the Beneficiary. The Beneficiary must demonstrate that their relationship will suffer more than normal hardship or financial inconvenience caused by separation from the qualifying relative.

USCIS will use the following factors to determine whether extreme hardship has been met:

  • Health considerations of the qualifying relative:
    • Relative suffers a major medical condition which makes the relative unable to move abroad and needs the Beneficiary in the U.S. to take care of him or her;
    • Relative requires ongoing treatment requirements for a physical or mental condition in the U.S.;
  • Financial considerations of the qualifying relative:
    • Relative is not financially stable as he or she: is not employed; experienced loss due to sale of home or business; has high cost of extraordinary needs such as special education or training for children; or, high cost of caring for family members
  • Personal considerations of the qualifying relative:
    • Relative has other close relatives in the United States and will be separated from spouse/children;
  • Special considerations of the qualifying relative:
    • If the relative were to move abroad with Beneficiary, he or she would experience cultural, language, religious, and ethnic obstacles and/or valid fears of persecution, physical harm, or injury.

Have Questions? Contact Us!

Verma Law Firm and our San Jose immigration attorneys have been committed to helping our client find effective solutions to immigration matters. We have helped numerous clients over the years achieve the American Dream, and we are ready to help you begin that journey.

To begin, please give us a call to schedule your free case review!

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