If you entered the United States without inspection and are interested in applying for a green card (also known as permanent residence), you probably already know that you eventually will need to go back to your home country and apply for the green card at a United States consulate. Unfortunately, that is not the end of the story.
If you have been in the United States unlawfully for more than 180 days after you turned 18 – and even if you have been a productive member of society and kept a clean criminal record – you will also need what is called a waiver of inadmissibility, or unlawful presence waiver (Form I-601 or I-601A). It is merely a way of asking the United States government to forgive your unlawful presence.
Traditional unlawful presence waiver (I-601)
Traditionally, to obtain an unlawful presence waiver, you needed to apply for it after your green card interview at a United States consulate abroad. Although the process has been simplified for some (see below), many green-card applicants must still go through the traditional process for an unlawful presence waiver.
To obtain that waiver, you must satisfy the following requirements:
- You are the spouse, child (unmarried and under 21), or parent of a U.S. citizen or permanent resident; and
- You can show that the denial of the waiver and green card would result in extreme hardship to your U.S. citizen or permanent resident spouse or parent.
There is no one way to prove extreme hardship, and every case is unique. For that reason, you should speak to an immigration attorney so that you can give him or her the full picture. But here are some things to keep in mind: Does you relative depend on you financially, emotionally, or for medical care? If you were required to leave the United States, would your relative join you or remain in the United States? If your relative will join you in your home country, how will the conditions there affect your relative? That is, would your relative be able to speak the language, earn a living, get an education, obtain any necessary medical care, or live in safety? Another thing to keep in mind is that, although the focus is on the hardship that your relative will face, you should highlight any hardships you will face and try to tie them back to your relative.
Provisional unlawful presence waiver (I-601A)
In early 2013, the process for requesting an unlawful presence waiver became easier. If you have a U.S. citizen in your immediate family – that is, if your spouse, parent, or unmarried child under the age of 21 is a U.S. citizen – you may now request a provisional unlawful presence waiver (Form I-601A) before you leave the country and pursue your green card application abroad.
The new rule means that (1) you will likely spend less time separated from your job and family here in the United States, and (2) if your request is denied, you will not suddenly find yourself stranded in your home country.
Despite the convenience of applying for a provisional unlawful presence waiver in the United States, it does carry a more stringent hardship requirement. To satisfy the hardship requirement for a provisional unlawful presence waiver (I-601A), you must show that the denial of the waiver and green card would result in “extreme hardship” to your U.S. citizen spouse or parent. Unlike the traditional unlawful presence waiver (I-601), to qualify for the provisional unlawful presence waiver (I-601A), you may not rely on any hardships that your permanent resident relatives would face.
All together, the requirements for a provisional waiver are:
- You are 17 years old or older;
- You are in the United States at the time of filing the request for a provisional waiver;
- You are the spouse, child (unmarried and under 21), or parent of a U.S. citizen;
- You have an approved visa petition (typically Form I-130), a pending immigrant case with the Department of State, and you can provide a visa processing fee receipt;
- You can show that the denial of the waiver and green card would result in extreme hardship to your U.S. citizen spouse or parent;
- The Department of State did not schedule your immigrant visa interview for your current green card application before January 3, 2013;
- You are willing to leave the United States after your request for a provisional waiver is granted so that you can pursue your green card at a U.S. consulate abroad;
- You are not in removal proceedings, or if you are, the proceedings have been administratively closed;
- You are not inadmissible on any other ground besides the unlawful presence;
- You are not subject to a final order of removal; and
- You do not have a pending application for adjustment of status (I-485) with USCIS.
If you believe you may need an unlawful presence waiver, contact me today.
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