On January 3, 2013, USCIS published a new rule which allows certain aliens who are immediate relatives of United States citizens to apply for waivers of inadmissibility for the unlawful presence bar without leaving the United States. 

Previously, aliens who entered the country illegally and were married to United States citizens or had United States adult children had to depart the United States to apply for a green card.  During the process they would also have to seek waiver of inadmissibility for "unlawful presence."  Review of the waiver application could take months or years.  Families would be separated from their loved ones with no certainty of how long or whether the family member applying for the green card would come back at all.

The new rule will benefit individuals who crossed the border illegally and who are now married to a United States citizen or have an adult United States citizen child. Applicants will now be able to apply for the waiver before leaving the United States and obtain a provisional approval of the waiver.

The new rule is called the "Provisional Unlawful Presence Waiver." There are two benefits to the rule. First, it will shorten the time family members will be separated when applying for a green card at the United States consulate.  Second, applicants will not face the uncertainty of being trapped outside of the United States in the event the waiver is denied. 

The waiver is submitted on Form I-601A.  USCIS will begin accepting waiver applications under the new rule on March 4, 2013.

Contact The Chander Law Firm if you have questions regarding the Provisional Unlawful Presence Waiver program.

• You must be an "immediate relative".
• You must be the beneficiary of an approved I-130 or I-360.
• You must have a case pending the with National Visa Center and you must have paid the Immigrant Visa fee.
• You must be able to demonstrate that your separation will cause extreme hardship to a United States citizen spouse or parent.
• You must be available in the United States for a biometrics (fingerprinting) appointment.
• If you were scheduled for a consular interview before January 3, 2013, you are not eligible for the provisional waiver program.
• If you are in removal (deportation proceedings), you may not apply unless your proceedings are administrative closed or terminated.
• If you are ineligible for a green card for any reason other than unlawful presence, you may not apply under the provisional waiver program.

Foreign nationals applying for lawful permanent resident status will be denied admission to the United States if they are subject to one or more grounds of inadmissibility.  Grounds of inadmissibility make an alien ineligible to enter the United States and include health related, criminal, national security, foreign policy, immigration status, and other grounds. 

"Unlawful presence" is a ground of inadmissibility that many undocumented aliens  in the United States are subject to and can result in a 10 year bar to reentering the United States. 

Section 212(a)(9)(B) of the Immigration and Nationality Act defines "unlawful presence". An alien is unlawfully present in the United States if the alien is present after the period of authorized stay has expired or if the alien has entered the United States without being admitted or paroled.  If an alien is unlawfully present for 180 days up to 1 year, the alien will be prohibited from seeking reentry to the United States for 3 years.  If the alien is unlawfully present for one year or more, the alien will be inadmissible for a period of 10 years.

An alien may apply for a waiver of the "unlawful presence" ground of inadmissibility by showing that extreme hardship would result to a United States citizen or lawful permanent resident spouse or parent from the refusal of admission. 

Previously, applications for waivers of inadmissibility had to be made by an alien from outside the United States. The result was that applicants could be separated from their United States family for very long durations.  The new Provisional Unlawful Presence Waiver seeks to reduce the duration of separation by allowing aliens to apply for the waiver or unlawful presence before exiting the United States to apply for the green card.

Contact The Chander Law Firm if you have questions regarding unlawful presence or any other immigration issue today.

A successful application for the unlawful presence waiver must establish that extreme hardship would result to a United States citizen or lawful permanent resident spouse or parent (qualifying relative) if the alien were refused admission.  Extreme hardship must be demonstrated by clear and convincing evidence and can be difficult to establish.

The government must consider any claim of extreme hardship, including the following nonexclusive factors: 1) presence of the qualifying relative in the United States; 2)  qualifying family member family ties outside the United States; 3) conditions in country of relocation; 4) financial impact of the departure; and 5) significant conditions of health, especially when tied to the unavailability of care in the country of relocation. Hardship based on cultural difference, reduced job opportunities or economic hardship, emotional hardship, or community ties alone do not constitute extreme hardship.  However, the cumulative impact of these factors may result in a finding of extreme hardship.

An application for extreme hardship includes documentary evidence of the hardship and a legal brief explaining why there should be a finding of hardship. Your lawyer may ask you to collect documentation regarding health issues, children's academic performance, employment and finance, and ties to your community. Your lawyer may ask for you and your family member to be evaluated by a psychologist to assess the emotional impact of separation.  Your lawyer may also ask you to obtain information regarding the conditions in the country of return, including articles on health and public safety.

 Not all families have strong cases for demonstrating extreme hardship. You must honestly discuss your family life with your lawyer in order for your lawyer to assess whether you should pursue an extreme hardship waiver.

If you have more questions regarding extreme hardship, contact The Chander Law Firm by telephone or email today.