Expansion of the Waiver for Unlawful Presence

NEWSLETTER – November 2016

 

Written By Attorney Sergio A. Perez of the Franco Law Group, APLC.

 

 

Expansion of the Waiver for Unlawful Presence.

 

As of August 29, 2016, the U.S. Citizenship and Immigration Services (USCIS) is accepting applications for provisional waivers for unlawful presence under the expansion of this benefit.  The expanded waiver benefits children and spouses of lawful permanent residents, or “green card” holders, who are themselves seeking lawful permanent residence and who have to travel for their interview to the U.S. consulate in their countries of origin.

 

In general, an undocumented person, who applies for lawful permanent residence is not eligible for this benefit if she has been unlawfully present in the United States for more than 180 days.

However, an immigrant may apply for a waiver of her unlawful presence.  The waiver has certain requirements, which include that the immigrant must demonstrate that the denial of her admission to the United States will cause extreme hardship to her spouse or parent who is a U.S. citizen. Normally, the immigrant must apply for the waiver outside of the United States at the consulate in her country of origin where the interview related to her application for lawful permanent residence will take place.  However, as of March 4, 2013, children and spouses of U.S. citizens have been able to apply for the waiver before leaving the United States.  This benefit is called the provisional unlawful presence waiver.  The main benefit of the provisional waiver is that an immigrant will know if her unlawful presence waiver is approved before she has to leave the country.

 

With the recent expansion of the provisional waiver, not only children and spouses of U.S. citizens may seek the unlawful presence waiver before leaving the country.  The expansion of the waiver now allows children and spouses of lawful permanent residents to seek the same waiver as part of their applications for lawful permanent residence before leaving the country for their consular interviews.

 

Consult With An Immigration Attorney In Order To Determine If

You Can Benefit From the Expansion of the Provisional Waiver.

 

The provisional waiver is only available to immigrants who are ineligible for lawful permanent residence due to their unlawful presence.  There are other bases which may make an immigrant ineligible for lawful permanent residence, including certain criminal and immigration law violations.  Due to the various inadmissibility grounds that exist, it is recommended that an immigrant consult with an immigration attorney before filing any application in order to analyze the specific facts of her case, especially if the immigrant has prior criminal and immigration law violations.  Also, USCIS is very strict when it analyzes whether the denial of the provisional waiver will cause extreme hardship to an immigrant’s spouse or parent who is a citizen or lawful permanent resident.  For this reason, it is also recommended that an immigrant consult with an immigration attorney before filing an application in order to analyze whether the immigrant can demonstrate that her parent or spouse will suffer extreme hardship if her provisional waiver is denied.

 

Please contact our office to Schedule a consultation with one of our attorneys at (213) 200-1505.

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