By Attorneys Gregory J. Boult & Nancy E. Miller
In a move that will greatly increase the number of individuals who are eligible to apply for a provisional unlawful presence waiver, U.S. Citizenship and Immigration Services is finally taking steps to expand this very popular program which has allowed so many individuals to obtain a green card. As a result, many individuals who are presently ineligible to apply for a provisional waiver will soon qualify.
Not all beneficiaries of family petitions are eligible to obtain a green card while physically present in the United States. Many are ineligible to adjust their status in the United States to that of lawful permanent resident for a variety of reasons, including having entered the United States without inspection, having entered with a visa that has since expired, having entered with a crewman’s visa, or having entered the United States to marry a fiancée or fiancé but failed to do so. Typically these individuals are required to return to their native countries to apply for an immigrant visa. However, this process has often proven very risky given the frequent necessity of applying for a waiver for unlawful presence in the United States.
An individual who departs from the United States after being unlawfully present for more than six months but less than one year is barred from returning to the United States for three years, and an individual who departs after being unlawfully present for one year or more is barred from returning for ten years. As a result, many individuals who were required to apply for an immigrant visa abroad found themselves inadmissible to the United States as a result of their departure after being unlawfully present. Fortunately, those individuals with a spouse or a parent who was a United States citizen or a lawful permanent resident could apply abroad for a waiver of their unlawful presence. However, such a process was difficult and involved a serious risk. This process was difficult as an applicant had to remain abroad while their waiver application was being processed – something which could take months, or even a year or more. And this process involved a risk because the denial of a waiver application meant that the applicant could not immigrate to the United States until their inadmissibility bar of three or ten years had run.
For many, such a process proved very unappealing as it often meant a long separation from one’s family with no guarantee after the prolonged wait that the applicant would be approved for the waiver and thus allowed to immediately return to the United States. As a result, many individuals who qualified for such a waiver simply declined to pursue this process. Fortunately, just over two years ago, U.S. Citizenship and Immigration Services introduced the provisional unlawful presence waiver program – a program which eliminated the two bases which deterred most individuals from seeking the unlawful presence waiver abroad. Instead of waiting outside the U.S. for months, or a year or more, individuals with a United States citizen spouse or parent could apply for a waiver of their unlawful presence while remaining in the United States to await a final decision. This also eliminated risk of being stuck outside the United States if the waiver were denied.
While the provisional unlawful presence waiver program proved an immediate success when introduced in 2013, the program was not available to all individuals who required an unlawful presence waiver – the waiver was only available to those individuals who had a United States citizen spouse or parent. However, U.S. Citizenship and Immigration Services is finally moving to expand the provisional unlawful presence program to include not only those individuals with a spouse or parent who is a United States citizen, but also those individuals who have a spouse or parent who has a green card.
The expansion of the provisional unlawful presence waiver program will become effective in a few months, and with it many individuals who are presently ineligible for the program will now qualify. Obtaining such a waiver is not an easy task – an applicant must establish that his or her qualifying relative will suffer extreme hardship if the waiver is denied, as well as evidence that the waiver should be granted as a matter of discretion. In addition, to be eligible for the provisional waiver, unlawful presence must be the only ground under which the immigrant is inadmissible. However, an experienced and knowledgeable immigration attorney will be able to evaluate an individual’s eligibility for the waiver and, if eligible, represent that individual throughout the entire waiver application process as well as the resulting immigrant visa processing.
