Provisional Unlawful Presence Waivers for Immediate Family Members Reduce Risks of Leaving U.S. to Apply for Immigrant Visas
As a green card attorney in Woburn MA, I help relatives of U.S. citizens obtain their permanent residence status. Relatives who are in the U.S. illegally face potentially long separations from their loved ones if they leave the country to apply for visas. However, on March 4, 2013, a rule takes effect that will shorten the period of time that some immediate relatives of U.S. citizens who are in the U.S. unlawfully must remain outside the country before obtaining their visas.
The Problem of the 3 and 10-Year Re-Entry Bars
In general, immediate relatives of U.S. citizens who are in the U.S. illegally must leave the country to apply for an immigrant visa before they can become permanent legal residents. Once out of the country, these individuals often face a 3 or 10-year re-entry bar. [link to prior article on 3 and 10 year bars]Specifically, those unlawfully in the U.S. for 180 days or more are barred from returning for 3 years and those unlawfully here for a year or more are barred from returning for 10 years.
The U.S. government will waive the return bar, but only if the immediate relative can prove that not being allowed in the U.S. would cause “extreme hardship” to the U.S. citizen sponsor.
How the Rule Changes the Law
Before the rule change, the immediate relative could not even apply for a waiver until he or she first left the country, applied for an immigrant visa abroad, and was found inadmissible to the U.S. because of the bar. Under the new rule, an immediate relative here illegally may obtain a provisional unlawful presence waiver before leaving the U.S. to apply for a visa abroad.
Even if the waiver is granted, the relative must still leave the U.S. to obtain an immigrant visa. However, having the waiver in hand will provide assurance that the person will not be stuck abroad for a lengthy period. Before this rule change, many immediate relatives of U.S. citizens decided not to apply for permanent resident status because the risk of being barred from re-entry after returning to their native countries to obtain a visa was just too great.
Who Is Eligible to Apply for the Waiver
To be eligible for the provisional unlawful presence waiver, you must meet these requirements:
- You must be an immediate relative of a U.S citizen, i.e., a spouse, unmarried minor child, or parent. Immediate relatives of permanent residents (green card holders) do not qualify.
- The immigrant visa petition filed by your U.S. citizen sponsor must have been approved and you must have paid the visa processing fee.
- You must be inadmissible to the U.S. only because of your unlawful presence in the U.S. for 180 days or more. You will not qualify if you are inadmissible for any other reason.
- You must demonstrate that denial of the waiver would result in extreme hardship to your U.S. citizen spouse or parent.
Further information about applying for a provisional unlawful presence waiver is available on the USCIS website
Contact a Woburn green card attorney
For advice and assistance with unlawful presence waivers, green card applications, or any other immigration issue, contact David Ionson, a green card attorney in Woburn MA, at (781) 674-2562.
