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Provisional Waiver: Avoiding the 3 and 10 Year Unlawful Presence Bars

If you are a foreign national, and you have accrued unlawful presence in the United States, leaving the United States could result in you being barred from reentering. Under current law, foreign nationals who have remained in the United States for more than 180 days in unlawful presence are barred from reentering the US for a 3 year period if they leave the US. Those who have accrued more than one year of unlawful presence in the US are barred for a 10 year period if they leave the US. If you are subject to the 3 or 10 year bar, and you need to leave the United States, you may qualify for a provisional waiver that would allow you to reenter despite the 3 and 10 year bars. For additional information, or for a consultation with an attorney about the specific facts and strength of your case, contact the experienced attorneys at The Law Firm of Shihab & Associates. Our lawyers have over 50 years of combined legal experience in a wide variety of complex immigration law matters.

Why is the waiver needed? Those who entered US with unlawful admission must leave US before filing a green card application

Foreign nationals who have entered the US without being lawfully admitted, cannot adjust status to permanent resident status (green card) while inside the US. When such individuals qualify for adjustment of status, in order to apply they must travel abroad and apply for an immigrant visa from the US Department of State (DOS) through a consular office outside the US.

The Department of State can wave the 3 and 10 year bars, but it’s risky

The US Department of State has authority to grant an unlawful presence waiver (Form I-601 Application for Waiver of Grounds of Admissibility) to wave the 3 and 10 year bars if it can be established that the bar would result in extreme hardship to the applicant’s US citizen spouse or parent. However, there is a risk involved. Consider the situation that could results if you were to travel to the consular office to apply for the waiver, and then suppose the US DOS were to deny your unlawful presence waiver application. You would then be subjected to the 3 or 10 year bar prohibiting your reentry back into the US. You would be stuck outside the US for 3 or 10 years, a dire situation that would not have happened to you if you did not take the risk.

What is the USCIS provisional unlawful presence waiver?

The USCIS provisional unlawful presence waiver is a new process that began March 4, 2013 (Form I-601A Application for Provisional Unlawful Presence Waiver). This waiver was created in order to avoid subjecting people to the I-601 waiver risk. The USCIS I-601A provisional waiver allows applicants to make the waiver application while still in the United States, thus avoiding the risk of having to depart first to apply at a consular office abroad and becoming trapped if the application is denied at the consular office.

Do I qualify for the waiver?

In order to qualify for the provisional unlawful presence waiver, you must meet the following criteria:

  1. Age 17 or older;
  2. Have an immediate relative, which is a US citizen spouse, child, or parent;
  3. Have an approved Form I-130 Petition for Alien Relative or approved Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant;
  4. Have an immigrant visa case pending with the Department of State for your approved immediate relative petition, and have paid the processing fee;
  5. Establish that your US citizen spouse or parent will suffer extreme hardship resulting from refusal of your admission;
  6. Be physically present in the United States to file your provisional waiver application and have biometrics taken;
  7. Must not have been scheduled for an immigrant visa interview by the Department of State prior to January 3, 2013;
  8. Also must meet all other criteria for the provisional unlawful presence waiver and for Form I-601A and official instructions.

You do not qualify for the provisional unlawful presence waiver if any of the following apply:

  1. You have other grounds of admissibility besides unlawful presence;
  2. The Department of State acted before January 3, 2013 to schedule your interview for your approved petition, even if the interview was canceled, you did not appear, or rescheduled;
  3. You are in removal proceedings that have not been administratively closed;
  4. You are in removal proceedings at the time of filing that were administratively closed, but are back on the EOIR calendar to continue proceedings;
  5. You failed to meet one or more requirements of Form I-601A and its instructions.

In addition to the above, there are several other factors and procedures to consider for a favorable adjudication of your case. If you have any questions about the provisional unlawful presence waiver or any of the other immigration matter. Please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at one of our offices near you.

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