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The New Proposed Provisional Waiver Rules for Unlawful Presence in the United States: What Should I be Doing if I am in the United States Illegally?

I have been blogging for several weeks now about the proposed Federal Regulations that will allow a non-citizen with illegal presence in the United States to remain in the United States while he or she has a pending waiver application for that ground of inadmissibility. This development is exciting for many immigrants, particularly those who entered the United States illegally, but would otherwise qualify for legal permanent residence status. Although the waiver of inadmissibility has always been available at the overseas consulates for those with illegal presence, currently the non-legal immigrant has to leave the country and process his I-601 waiver application, which could mean separation from his family in the United States for anywhere from a few months to a couple of years. The new provision allows a qualified person to file an I-130 immigrant petition and file for the provisional waiver of inadmissibility while in the United States, and once it is approved, return home abroad to for an interview at the consulate, which could take from a couple of days to a couple of weeks.

It is important to understand who will be eligible for this waiver.

  • First, to be eligible your must be the beneficiary of an I-130 application. In order for you to have a visa immediately available to you, a United States Citizen spouse, parent or child over the age of 21 must file an I-130 immigrant visa petition on your behalf.
  • Second, you must have a qualifying relative – a United States Citizen spouse or parent, who would suffer extreme hardship if you were not allowed to live in the United States.
  • Third, the applicant (you) must be over 17 years of age and reside in the United States.
  • Fourth, you only qualify for the provisional waiver if unlawful presence (which will trigger the 3 and 10 year bars) is the only grounds of inadmissibility keeping you from becoming a legal permanent resident. It is very important that you consult an experienced immigration attorney to insure you do not have other grounds of inadmissibility that would negate the provisional waiver process, an possibly put you in jeopardy with USCIS.
  • Fifth, you do not qualify for the provisional waiver if you have a pending adjustment of status application or if you have already been scheduled for an immigrant visa at a consulate abroad.
  • And finally, you cannot be in pending Removal Proceedings, or be subject to a final order of removal.

The upside to this procedure, is that you will know before you leave the United States whether you will be subject to the three or ten year bars. Second, even though you still must go abroad to complete your immigrant visa processing at the consulate, your stay abroad will likely be from a few days to weeks. Your biometrics (fingerprints) will be done here in the United States, and your application will be filed directly with the USCIS as opposed to the consulate.

You must proceed with caution because the provisional waiver process could have some downside as well. There is no appeal to a denial and you cannot re-file for the provisional waiver. It is important to remember that this provisional waiver is only for unlawful presence grounds of inadmissibility, and not for other grounds of inadmissibility such as criminal, fraud, medical, or alien smuggling. For those other grounds, you can still leave the country to apply process your I-601 application. If you have parents that are legal permanent residents that would suffer extreme hardship if you were not allowed to live in the United States, you cannot use them as qualifying relatives with the provisional waiver, as you can if your file your waiver overseas. In other words, you might have a stronger case for approval if you file the I-601 abroad.

What should you be doing now if you have unlawful presence, but have qualifying relatives for extreme hardship? First, understand the Federal Rules have not been enacted yet. They are still in notice and comment period, and are not expected to become official until the end of the year. Absolutely you should consult an attorney experienced in immigration and waivers of inadmissibility. If all circumstances are in your favor, your could begin now by filing an I-130 application, which have a current processing time of 5 months. This would put you first in line if and when the provisional waivers become available at the end of the year. However, I cannot stress enough the need to proceed with caution. Seek out an experienced immigration attorney before you do anything, or you could end up putting yourself in jeopardy.

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