 Certain visa immigrant applicants who are spouses, children and parents of U.S. Citizens may be eligible to apply for the Provisional Unlawful Presence Waivers, also referred to as the Stateside Waiver program. This waiver program allows for individuals who qualify to apply for a waiver of unlawful presence in the United States, instead of applying at a consulate abroad.
Under immigration law, immediate relatives of United States citizens are not allowed to adjust status to that of permanent resident, in the United States. Instead, those immediate relatives must apply for an immigrant visa abroad. The issue, as is a problem faced by many individuals who have been here illegally for more than 180 days, is that those individual could be subject to immigration bars of 3 or 10 years depending on the amount of time they were in the United States illegally. This ban does not take effect until the intending immigrant leaves the United States.
As is often the case, these intending immigrants leave the United States to the country of their birth and face issues of returning due to their illegal presence. They will be subject illegal presence bars under INA §212(a)(9)(B). While this waiver program allows individuals to apply for the illegal presence waiver in the United States, the current program remains in effect. So, individuals wishing to apply through the consulate abroad can still do so.
Through the Provisional Unlawful Presence Waiver process, individuals must still leave the United States and obtain their visa abroad. However, through this process, the wait time abroad should not be indefinite and should go much more quickly. This process is available to individuals who only have an illegal presence. If any crimes need to be waived, those waivers cannot be obtained through the Provisional Unlawful Presence Waiver process.
USCIS has listed eligibility requirements through its website. Specifically, in order to be eligible for a provisional unlawful presence waiver an applicant must fulfill ALL of the following conditions:
- Be 17 years of age or older.
- Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
- Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
- Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
- Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
- Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
- Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
- Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.
The waiver process can be a very difficult one to go through. It is imperative that individuals who qualify or may qualify for a waiver, seek the assistance of experienced attorneys such as Gupta & Trujillo to help prepare a strong waiver application. If you believe you may qualify for stateside waiver, contact Gupta & Trujillo immediately for a consultation |