Provisional Unlawful Presence Waiver FAQ


What is the New Jersey Provisional Unlawful Presence Waiver?

To answer that question, I must first explain the problem.

  • If you are out of status in the United States, whether you entered the country without permission or overstayed a visa, the law currently does not allow you adjust your status to a permanent resident in the U.S.
  • You must go back to your home country and get an immigrant visa from the US consulate there.
  • The problem is if you accumulated “Unlawful Presence” you could be barred from returning to the US for 3 or 10 years.
  • You can file for a waiver of your Unlawful Presence, but up until now that could only be done at the U.S. Consulate in your home country AND only after they first determined that you were not otherwise inadmissible.  That requires at least two different interviews all while you were away from your family.
  • That could cause immigrants to be out of the US for 12 months or more.
  • Many immigrants would not willingly go through this process so they remained without legal status even though they have a qualifying relative that could petition for them.

The Provisional Unlawful Presence Waiver is meant to change that.

  • This Program comes through the President, not through Congress. Therefore, he can’t change the fact that you still have to leave the U.S to adjust your status.
  • This program does allow you to apply for the waiver before you leave the US.  Thereby significantly reducing your separation from your family and addressing the hardest part in advance.

What is the difference between Unlawful Presence and Unlawful Status?

What is the difference between Unlawful Presence and Unlawful Status?

  • Although the two are related, they are not synonymous.
  • Unlawful status results when you violate the terms of the status Department of Homeland Security gave you.
  • Whereas, unlawful presence relates to time in the US past any authorized presence or being in the US without being admitted or paroled. (E.g., walked across the border).
  • For example, if you were admitted as a student and worked without permission, you would be in unlawful status.  However, you do not accumulate unlawful presence until immigration agency or judge makes such a finding.

How can I waive my unlawful presence in New Jersey?

Since 1996 immigrants who have accumulated a certain period of “unlawful presence” in the U.S. and then left the country, are barred from becoming lawful permanent residents for a period of time unless they first obtain a waiver.Persons who have accumulated 180 days or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 3 years. Persons who have accumulated one year or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 10 years. These are referred to as the 3 and 10 years bars.Persons who commit fraud or a material misrepresentation are barred from the U.S. for life, unless they obtain a waiver.You must apply for a waiver by filing Form I-601 to the USCIS and proving that the immigrant’s U.S. citizen or permanent resident spouse or parent(s) would suffer “extreme hardship” unless the person was granted a waiver.

What are the Requirements for the Provisional Unlawful Presence Waiver?

In order to apply for the Provisional Unlawful Presence Waiver, you must

  1. Be physically present in the United States;
  2. Be at least 17 years of age at the time of filing;
  3. Have an approved immigrant visa petition filed U.S. citizen immediate relative;
  4. Have an immigrant visa case pending with the U.S. Department of State (DOS) AND you have already paid the immigrant visa processing fee;
  5. You accrued Unlawful Presence in the U.S., and are not inadmissible for any other reason;
  6. Prove extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion
  7. You meet all other requirements of the provisional unlawful presence waiver as listed in the regulations, the Form I-601A and its instructions.

When am I not Eligible for a Provisional Unlawful Presence Waiver?

You are not eligible for a provisional unlawful presence waiver if you:

  1. Do not meet one or more of the requirements previously discussed;
  2. Have a pending Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS (in which case you don’t need this);
  3. Are in removal proceedings UNLESS your removal proceedings are administratively closed + have not been re-calendared as of the date of filing;
  4. Have been ordered removed, excluded, or deported from the United States;
  5. Are subject to reinstatement of a prior removal order;
  6. Have an immigrant visa interview that was scheduled prior to January 3, 2013, even if you failed to appear or it was rescheduled for a date after January 3, 2013 (this is a bright line rule); and
  7. Do not prove that the refusal of your admission to the U.S. would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion.

How do I Apply for the Provisional Unlawful Presence Waiver?

  • You can’t file before March 4, 2013.
  • Sometime before then, DHS will be releasing Form I-601A, Application for Provisional Unlawful Presence Waiver and the filing fee.
  • At this point, the form has not been released.  Nor do we know where to submit it or what the filing fee will be.
  • There will also be a biometric fee.
  • You should also notify the Department of State of your intention to file a provisional unlawful presence waiver.

Are there circumstances when unlawful presence doesn’t accrue?

Yes.  Here are some examples where unlawful presence does not accrue:

  • Granted voluntary departure;
  • Granted Temporary Protected Status;
  • You have pending adjustment application;
  • Granted withholding of removal;
  • You were granted a Stay of Removal;
  • Granted Cancellation of Removal

Can I Apply for the Provisional Unlawful Presence Waiver if I am in Removal Proceedings?

Yes, if you have a USC immediate relative, but the removal proceedings must be:

  1. Administratively closed; and
  2. Have not been re-calendared as of the date of filing the I-601A.

Can I get an unlawful presence waiver if I’m being deported?

Yes and No.  A typical lawyer answer, right?  Here is the deal.  If you are in removal proceedings and you have a qualifying family relative who is a U.S. citizen or lawful permanent resident (green card holder) than you can apply for the program.  For this program a qualifying family relative is a spouse or parent.  Children over 21 who can apply for you unfortunately don’t count because they can’t be the basis to get the waiver.

Although you qualify for the waiver, you can’t actually apply for the program while you are in removal proceedings.  Every district is different, but in New Jersey if you are in removal proceedings you will need to terminate your removal proceedings.  Here is the process:

  1. Your qualifying family relative files a petition for alien relative for you (I-130);
  2. When the petition for alien relative for you (I-130) is approved, you will need to pay the fees for consular process;
  3. Prepare your waiver package (I-601A) but don’t file it yet;
  4. File a motion to terminate your removal proceedings.  Make sure to include a copy of the relative waiver package and proof that you paid the consular process fees;
  5. The government’s attorney in New Jersey isn’t terminating the proceedings, instead they are administratively closing the case (that means they can reopen it at any time);
  6. File for your waiver (I-601A);
  7. When the waiver is approved, file a motion to terminate the removal proceedings;
  8. Leave the U.S. for your consular interview
  9. Return to the U.S. and receive your green card.

I know it looks complicated but it is doable.

If I Have a Pending/Approved Request for a Provisional Unlawful Presence Waiver, Can I Receive Interim Benefits?

No. A pending/approved provisional waiver also will NOT:

  1. Provide interim benefits such as employment authorization or advance parole;
  2. Provide lawful status;
  3. Stop the accrual of unlawful presence;
  4. Provide protection from removal;
  5. Remove the requirement to depart the United States to seek an immigrant visa; or
  6. Guarantee immigrant visa issuance or admission to the U.S.

What is Unlawful Presence and the 3 and 10 year bar?

Someone who is in the U.S. after authorized stay expired or entered the U.S. without being admitted or paroled.  This only applies after passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or April 1, 1997.  That Act created what has become the 3 and 10 year bar.

  • 3 year bar. For any unlawful presence over 180 days but less than 365 days, once the alien leaves the U.S. the alien must stay out for 3 years unless a waiver is granted.
  • 10 year bar. For any unlawful presence over 365 days after leaving the U.S. the alien must stay out for 10 years unless a waiver is granted.

If they return to the United States without the pardon, they may not apply for a waiver for a period of ten years.This is only applies for unauthorized time during a single stay.  So if you stayed for 179 days beyond the time allowed you, left, and then returned and stayed an additional 179 days past the allowed time, you are not subject to the three year bar.

What is the The Illegal Immigration Reform and Immigrant Responsibility Act of 1996?

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996,  signed by President Bill Clinton and enacted in September 30, 1996 vastly changed the immigration laws of the United States. This act created the 3 and 10 year bar.  The bar prevents many undocumented immigrants from adjusting their status since they don’t want to do consular processing and risk being apart from their families for the long processing times.  The Act also significantly increased the crimes qualifying as an aggravated felonies resulting in almost certain removal from the U.S.
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