Provisional Waivers Allow Illegals With Unlawful Presence to File Waivers in U.S.

Since March 4, 2013, certain immediate relatives of U.S. citizens who are physically present in the United States have been  allowed to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications.  The Department of Homeland Security (DHS) anticipated that these changes in the rule will significantly reduce the length of time U.S. citizens are separated from their immediate relatives who engage in consular processing abroad.

Effective March 4, 2013, the new law benefits the following individuals:

(1) crewman (or jump ships) who married US citizens, but do not have the benefit of Section 245(i);

(2) people who entered the US without inspection (EWI), who married US citizens, but do not have the benefit of Section 245(i); and

(3) people who entered the US on a K-1 fiancée visa, but did not marry the American who petitioned them, but instead married a different American; and

(4) immediate relatives of U.S. citizens with an approved Form I-130 found ineligible to adjust status in the U.S.

What is the current process for filing an unlawful presence waiver?

An unlawful presence waiver is required for individuals who depart the U.S. after remaining illegally in the U.S. and trigger a three-year or ten-year ban from returning to the U.S.  Under current law, individuals identified in the above paragraph would not be eligible for lawful permanent resident status in the U.S. if a petition was filed by their U.S. citizen relative.  Instead, these individuals would have to return to their native country, attend the immigrant visa interview, file the unlawful presence waiver at the U.S. Embassy and wait (sometimes 1-2 years) for a decision from the U.S. Embassy.  If the waiver is granted then the individual can return to the U.S. with an immigrant visa but if the waiver is denied then the individual can submit an appeal (which can take 2-3 years).

What will be the NEW “provisional unlawful presence waiver” process?

The new waiver process will allow eligible immediate relatives to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. It is anticipated that this new provisional unlawful presence waiver process will significantly reduce the time that U.S. citizens are separated from their immediate relatives. The approval of an applicant’s provisional unlawful presence waiver prior to departure also will allow the U.S. Embassy abroad to issue the immigrant visa without further delay, if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible to be issued an immigrant visa.  U.S. Citizenship and Immigration Services will be rolling out a new form, Form I-601A, for this new process.

Can I benefit from the NEW “provisional unlawful presence waiver” process if I am in removal proceedings?

DHS has decided to limit eligibility for the provisional unlawful presence waiver process to individuals whose removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A.  If the Form I-601A is approved for an alien whose proceedings have been administratively closed, the alien should seek termination or dismissal of the proceedings, without prejudice, by Immigration Court. The request for termination or dismissal should be granted before the alien departs for his or her immigrant visa interview abroad. Applicants who leave the United States before their removal proceedings are terminated or dismissed may experience delays in their immigrant visa processing or risk becoming ineligible for the immigrant visa based on another ground of inadmissibility.

Can I benefit from the NEW “provisional unlawful presence waiver” process if I have a final order of removal?

No, the NEW provisional unlawful presence waiver process will not include aliens with final removal orders. Generally, aliens who have outstanding final orders of removal may be inadmissible on a variety of grounds other than unlawful presence, such as criminal offenses and fraud and misrepresentation. In addition, any alien who is subject to a final order of removal, decides to leave the United States, and subsequently seeks admission, is inadmissible as an alien with a prior removal.

Will I be able to benefit from the NEW “provisional unlawful presence waiver” process if I entered with a fraudulent passport or have past convictions?

This provisional waiver applies only to unlawful presence that triggers the three and ten year ban from returning to the U.S. If a person has other immigration violations, such as fraud (entry with another’s passport), criminal convictions, and the like, which also require a waiver, the person would have to depart the U.S. and file the waivers after an interview at the U.S. Embassy and wait abroad for the final decision.

Can an immigrant already living outside the U.S. benefit from the the NEW “provisional unlawful presence waiver” process?

Unfortunately, individuals who are already outside of the United States must pursue a waiver of inadmissibility through the current Form I-601 process. The NEW provisional unlawful presence waiver process will remain available only to those individuals who are currently in the United States and will be departing for consular processing abroad.

How will immigration decide whether to approve or deny my  “provisional unlawful presence waiver”?

For the waiver to be approved, there must be an extreme hardship determination based on a showing of extreme hardship to a U.S. citizen spouse or parent.  Documentary evidence to prove the “extreme hardship” must be submitted with the waiver form, Form I-601A.

Can an immigrant with TPS benefit from  the NEW “provisional unlawful presence waiver” process?

TPS applicants who are immediate relatives of U.S. citizens can participate in the provisional unlawful presence waiver process if they are pursuing consular processing of an immigrant visa abroad.

When can I file the NEW “provisional unlawful presence waiver”?

Once you obtain an approved Form I-130 then a request for the unlawful presence waiver can be filed in the U.S. by using Form I-601A and you will be permitted to remain in the U.S. during the adjudication or decision-making process.  The filing fee for Form I-601A will be $585.00.

How old do I have to be to file under the NEW “provisional unlawful presence waiver” process?

Individuals must be 17 years or older request a provisional unlawful presence waiver.

What happens if I go through the NEW “provisional unlawful presence waiver” process and my waiver is denied?

The individual may depart the U.S., attend the visa interview at the Embassy and file the waiver under the current process and wait abroad for a decision on the waiver.  Also, the individual may appeal or re-file the waiver is new evidence will be submitted.  If the individual wants to remain the U.S. after a denial on his provisional unlawful presence waiver then they may face removal proceedings before the immigration court.

Before deciding to proceed with the NEW “provisional unlawful presence waiver” process, speak with a experienced immigration lawyer who can assess your unique situation and conclude you will benefit from this new law and new process.

For more information, email Gail@GailLaw.com or call 1-877-GAIL-LAW or 407-292-7730.
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