When you enter the US without authorization or stay past your visa expiration date, you’re “unlawfully present.” The Immigration and Nationality Act (INA) §212(a)(9)(B), mandates that a person with 180+ days of unlawful presence in the US is subject to a 3-year bar to readmission, and a person with one year or more of unlawful presence triggers a 10-year bar to readmission. These bars go into effect if you leave the US and try to re-enter. For overstayers, it’s possible to “adjust status” to lawful permanent resident (LPR) i.e. apply for a green card, without leaving the US. But someone who entered without authorization must leave the US to apply for an immigrant visa at his or her foreign embassy.
Before 2013, the person had to also apply for a waiver of the 3- or 10 year re-entry bar while abroad; this was done on Form I-601, Application for Waiver of Grounds of Inadmissibility, The person is eligible under INA §212(a)(9)(B)(v) if he can show that the refusal of his or her admission would cause “extreme hardship” to a US citizen or LPR spouse or parent.
This was risky business. If the waiver was denied, the person had to stay outside the US for 3 or 10 years, whichever applied. The family would be separated for at least 3 years. Applicants were very worried about leaving the country to apply for their waiver because of this risk, and many stayed longer in the US, still without authorization.
In 2013 U.S. Citizenship and Immigration Services (USCIS) introduced a new process that allowed the person to remain in the U.S. while applying for a provisional waiver. If approved, he would then go abroad to interview and apply for the waiver at the embassy as before. It’s still risky as a different problem can arise, but it’s much less risky than before. If the applicant has an approved provisional waiver, there’s a very good chance he’ll succeed in getting the visa and be able to return to the US and his family in an average of two weeks rather than months or even years.
USCIS is expanding the use of the provisional waiver process. The changes will go into effect August 29, 2016. Previously only spouses and children of U.S. citizens and parents of adult U.S. citizens could apply; they had to demonstrate extreme hardship to a U.S. citizen spouse or parent (note: not hardship to a child). With the latest changes, an applicant in any family or employment-based visa category can apply; all must still show extreme hardship to a U.S. citizen or LPR spouse or parent. The process will also apply to the diversity visa lottery, and to special immigrant classifications.
There are additional changes. Approval of the provisional waiver is not a guarantee that you’ll succeed at the embassy, so you still need to leave the US with eyes wide open. The provisional waiver only applies to inadmissibility based on unlawful presence. You can’t seek a provisional waiver for other problems such as a criminal conviction. If the consular officer finds a problematic prior criminal conviction or other immigration problem, the officer can revoke the provisional waiver. It’s very important to talk to an immigration attorney before going through this process to assess the risks. You must be completely honest with your attorney about your immigration history and background. If the government has information the attorney doesn’t have, you could end up with big problems. Your attorney should thoroughly review your background by checking government and criminal records with your cooperation. This can take some time but it’s wise to be extremely careful.
To schedule an initial consultation on your case, email ida@idakeirlaw.com.
