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Refers to staying in the U.S. without permission due to illegal entry, crossing the border, or overstaying your visa. Children below 18 don’t accrue unlawful presence.
This traditional waiver application requires you to apply and wait outside the US until the waiver is approved. If denied, you would be forced to remain outside the US for up to ten years.
This means that when you leave the US, you must wait outside the country away from your family for a period of time determined based on your accrued unlawful presence.
This waiver allows certain immigrants to file waiver applications from inside the US which helps them avoid triggering the inadmissibility bar should the application be denied.
“I didn’t know I could get documents… that there was help out there…Andres Mejer Law made me feel comfortable to trust them with my whole life.”
SECURED LEGAL STATUS
Mr. Quiyu was able to successfully petition for a green card for himself and his wife through the help of Andres Mejer.
GOT A GREEN CARD
Ms. Cartagena successfully filed her VAWA petition. As a result, she was able to live without the fear of deportation or losing her kids.
APPROVED FOR VAWA
America has some harsh penalties if you are here illegally. Many, because of their unlawful presence cannot apply for a green card, even if they are married to a U.S. citizen, until they stay outside of the U.S. for three-years or ten years. If you are one of those people, Good News! A waiver is available.
As always, remember that immigration law is incredibly complicated. You should seek the advice of an experienced New Jersey immigration lawyer prior to taking any immigration action including seeking a waiver for unlawful presence.
What is Unlawful Presence
What are the Requirements for Provisional Unlawful Presence
What are the Requirements for the Provisional Unlawful Presence Waiver
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Unlawful presence only means that you were in the U.S. without permission. That could have happened if you entered illegally by crossing the border. It can also happen when you enter legally but overstay your visa. However, you must be over 18 years old to accrue unlawful presence. You could be in the U.S. for 15 years as a minor, but you don’t accrue a single day of unlawful presence. 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 when you leave the U.S. The Catch 22 that you face is that you are required to leave the U.S. to obtain permanent residency (green card) at a U.S. consulate in your home country. When you leave, however, you trigger the three or 10 year bar to re-entering the country. That means you must wait outside the U.S. away from your family until the inadmissibility bar passes, unless you qualify for a waiver.
Alternatively, if you are subject to the unlawful presence bar you can file Form I-601, requesting a waiver of your inadmissibility. Traditionally, this meant that you had 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, you often waited for months for your waiver to be approved. If the waiver was denied, you would be forced to remain outside the U.S. for the entire period of the inadmissibility up to ten years.
Not surprising, the prospect of departing the U.S. for an uncertain period kept many from filing in the first place. Many immigrants chose to not file for their green card despite their eligibility because of the uncertainty.
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, form I-601A, USCIS allowed certain classes of intending immigrants to file waiver applications from inside the U.S.! The benefit, of course, is that you would know your unlawful presence waiver was approved before even triggering the inadmissibility bar! Assuming you are approved, your still need to leave the U.S. and complete the consular process.
The waiver is provisional in nature because the final word is up to the U.S. consulate at your country. Nonetheless, the provisional waiver offers considerable assurance that you will overcome the unlawful presence inadmissibility and return to the U.S. You are in the U.S. while USCIS is evaluating your waiver, whereas traditionally you were in your home country waiting. This significantly reduces the time of separation from your family.
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, you must be a spouse, parent, or minor and unmarried child of a U.S. citizen. You also need to show that your U.S. citizen spouse, parent, or child (immediate relative) would suffer extreme hardship if your were not allowed to quickly return to the U.S.
Effective August 29, 2016, though, the provisional waiver for unlawful presence is expanded. After August 29, 2016, all immigrants will be eligible for a provisional waiver, regardless of the basis for the immigrant visa application. So, family-based, employment-based, and special immigrants all will be eligible to apply for provisional waivers after August 29. 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.
People often put off seeing a doctor until it is too late. The same is true when it comes to immigration. Immigration problems often get worse with time, not better. You’re risking your family, your freedom and all that you work so hard for by not getting the care you need. You can find out right now if you may already qualify for legal status in the US. Just click below or call the Green Card to schedule a comprehensive immigration exam. It is free, so what are you waiting for?