Provisional Unlawful Presence Waiver
Who Does This Waiver Concern?
Illegal immigrants who are not eligible to adjust status (because of reasons such as illegal entry or overstay of visa) in the United States to become lawful permanent residents, must leave the country and obtain an immigrant visa from abroad. However, leaving the U.S. makes the illegal immigrant subject to being barred from reentering the United States for up to three to 10 years for having accrued unlawful presence for a period of six months or more. To overcome this bar from reentry to the United States, the individual must obtain a waiver. There is the current process of obtaining the waiver and an added new process of obtaining the waiver that will be more advantageous but available only to qualifying applicants.
Under the current process of attaining the waiver (unlawful presence waiver), the applicant can only apply for the waiver after two important procedures. First, they have to have appeared for an immigrant visa in a consulate abroad. Second, the U.S. Department of State has determined that the applicant is barred from reentering the United States.
This current process can be very time-consuming and difficult to endure, as the applicant will have to wait to remain outside the United States to apply for the waiver until the U.S. Department of State makes the decision on the waiver, which could take up to months or years.
This new waiver (provisional unlawful presence waiver), allows individuals to apply for a waiver even before they leave the United States to obtain an immigrant visa from abroad. This can significantly reduce the time the immigrant needs to stay abroad, who are in the process of obtaining an immigrant visa.
Who Is Qualified For This New Process?
There are five eligibility requirements for the applicant to obtain a provisional unlawful presence waiver.
- Applicant must have an approved and valid I-130 petition filed by a U.S. citizen or Law Permanent Resident relative.
- Applicant must be physically present in the United States.
- Applicant has not already scheduled an interview at a U.S. consulate abroad.
- Applicant is inadmissible only on the account of unlawful presence.
- Denial of the waiver would result in extreme hardship to his or her U.S. citizen or Lawful Permanent Resident spouse or parent.
What If I Am Not Eligible For The New Process?
If you do not meet the five eligibility requirements, you must follow the same procedures mentioned under the current law.
Why Is The New Waiver Named As “Provisional”?
This is because the provisional unlawful presence waiver is not a guarantee that the case will be successful. For example, even if the provisional unlawful presence waiver is granted, if the facts change or if new information regarding the applicant comes to light, the waiver can be revoked.
When Can I Apply?
The new law has been in effect since March 4 2013. Filings will be accepted beginning from that date. Also, you can only apply after an immigrant petition has been approved.
What If The Government Is Taking Too Long To Decide On My Petition For A Provisional Unlawful Presence Waiver?
If a government agency such as the United States Citizenship and Immigration Services (USCIS) has delayed unreasonably in deciding on your petition, an attorney can file a writ of mandamus on your behalf. This legal action may compel the government agency to act according to its lawful duty and stop withholding the necessary action of deciding on your case. Our immigration attorneys can explore this option that may speed your case along.
Option of Filing of I-212 Waiver and I-601A Waiver with Final Order of Removal
If the applicant has a final order of removal from an Immigration Judge, he or she may seek permission or consent to reapply for admission into the United States by filing for the I-212 Waiver, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. The applicant will need to show hardship to relatives who are U.S. Citizens or Lawful Permanent Residents or to himself/herself. Once the I-212 waiver is approved, the applicant may proceed with filing the I-601A Provisional Unlawful Presence Waiver.
Do I Need To Work With An Attorney?
The immigration process can take months, even years, and government filing fees and other expenses are significant – it’s best to know your options before investing time and money. A thorough legal consultation should look at all aspects of your immigration history to find the best solution for your family, not just evaluate eligibility for a provisional waiver.
My legal services are competitively priced, and I offer payment plans to clients in Los Angeles and surrounding areas in California, including Long Beach, Pasadena, San Fernando Valley, Santa Monica, Riverside, San Bernardino, Santa Ana, and Palmdale who qualify.