Stateside Waiver of the Unlawful Presence for Immediate Relatives of US Citizens

June 30, 2014 Mario Guevara-Martinez

Published on 30 June 2014 Hits: 1003

Immediate relatives of U.S. citizens usually receive more lenient treatments than other immigrants. For example, their green card process is faster and their unlawful presence may be forgiven in certain circumstances. However, even the immediate relatives of U.S. citizens will not receive immigrant benefits if they entered the country without proper inspection.

Under the current law, there are two ways through which these immediate relatives may obtain permanent residence: s.245(i) or returning to their home country and applying for I-601 waiver at the US consulate. Many just do not qualify under s.245(i). They are also too afraid to go back to their home country to apply for this waiver because if the waiver is not granted, they will not be able to return to the U.S.

The newly enacted I-601A provisional waiver of the unlawful presence ground of inadmissibility is receiving a lot of attention because it allows these immediate relatives to submit the waiver while still in the United States. While the new I-601 A provisional waiver does not relax the standard of the waiver requirement, it at least allows people to give it a try without having to risk not being able to re-enter the US.

Who Qualifies and When to Apply?

The goal of the provisional unlawful presence waiver process is to alleviate the extreme hardship certain U.S. citizens experience when they are separated for extended periods of time from their spouses, children, and parents (“immediate relatives”).

The new law takes effect on March 4, 2013. Also, to be eligible for the provisional waiver process, applicants must already have an approved I-130 or I-360. Those who are interested in this waiver need to first file the appropriate immigrant petition (I-130 or I-360) and then prepare the I-601A waiver.

Requirement for the Waiver: Extreme Hardship

USCIS also is limiting the provisional unlawful presence waiver process to those who can establish extreme hardship to a U.S. citizen spouse or parent. Please note that the hardship the applicants themselves may experience is irrelevant. The extreme hardship may be mental, financial, medical/health related. It also includes adverse conditions in the foreign country. Hardship resulting from separation of family is considered basic hardship, and not extreme enough.

If USCIS denies the request for a provisional unlawful presence waiver, will it have any negative impact?

Many potential applicants are concerned that they will be placed in removal proceedings in the case of denial. For cases where the provisional unlawful presence waiver is denied, USCIS will follow its current Notice to Appear (NTA) policy which prioritizes the types of cases USCIS will focus on for initiation of removal proceedings. Because US citizens’ immediate relative cases usually have a lot of equity, it is not likely that these applicants will be placed in removal proceedings unless there is additional negative record such as criminal conviction, fraud, misrepresentation, or threat to the public safety.

Proving extreme hardship takes a thorough review of the family’s circumstances and substantial documentation. Because the applicants of this provisional unlawful presence waiver will not have a chance to file a motion to reopen or motion to reconsider or to appeal a denial, it is important to do it right the first time.