What is the provisional unlawful presence waiver?
On a general basis, anyone who enters the U.S. on a visa or through the visa-waiver program is given a date-specific that they must depart from the U.S. In case someone stays past the date they were required to leave, they will be deemed out-of-status and begin to accrue unlawful presence in the United States. Once someone accrues 180 days of unlawful presence, that person becomes inadmissible into the U.S. and is barred from reentering the U.S. for three years.
If someone entered the U.S. without being inspected by an immigration official (such as by crossing the Mexican or Canadian border without permission), that person will be considered an unlawful presence from the day they entered. Moreover, there is an exception to this general rule for the spouses of U.S. citizens. However, in case they entered the U.S. without inspection (EWI), they cannot apply for the green card from within the U.S.
To help, USCIS now allows individuals who are inadmissible due to unlawful presence to apply for a provisional waiver of the three- and ten-year bar for unlawful presence before leaving the U.S. Even if the waiver is granted, the issuance of a visa will ultimately be the decision of a U.S. consulate abroad. Besides, an individual may be deemed inadmissible for other reasons as well, such as illegal reentry, immigration fraud or misrepresentation, criminal convictions, a prior removal order, etc.
How to qualify for the provisional unlawful presence waiver?
The provisional unlawful presence waiver allows the person to stay inside the United States without risking deportation. However, USCIS decides on the waiver, and then leave the U.S. to attend their immigrant visa interview only after the waiver is approved.
To qualify for the provisional unlawful presence waiver must meet all the following conditions:
- Be at least 17 years old
- Be physically present in the U.S.
- Have an immigrant visa case pending with the Department of State (DOS) because you:
- Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative, an approved Form I-140, Petition for Alien Worker, or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and have paid the immigrant visa processing fee to DOS, and you are currently in the process of obtaining your immigrant visa;
It is important to note that if a foreign national is in removal proceedings unless the foreign national’s removal proceedings have been administratively closed and taken off the EOIR calendar, they cannot utilize the waiver. In case their removal proceedings have been closed, they can submit the waiver application; once approved, they should contact EOIR and request an order officially terminating their removal proceedings before leaving the U.S. for the visa interview. If they do not fully terminate their removal proceedings before leaving, the waiver will be revoked upon their departure from the U.S.
The Executive Office for Immigration Review (EOIR) established an electronic phone system to provide EOIR’s customers with ready access to immigration court information in English and Spanish.
How Sethi and Mazaheri can help you with an Unlawful Presence Waiver
We understand that these processes could seem complicated and hard to understand, especially when you are requesting a waiver. For this reason, our attorneys are prepared to help you navigate this situation. Our firm is up to date on the new regulations and available to assist you on the best path for you to achieve legal status. We aim to provide some much-needed reassurance and guidance during these challenging times. We are here to help you in your immigration journey.
If you or someone you know is exploring different ways to transition to permanent residency, we highly recommend contacting our office directly at (646) 405-9846.