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Waivers of Unlawful Presence – An overview

If you or a loved one are in the US without permission, you may qualify for a Waiver of Unlawful Presence.

If you are in the United States without permission and seeking a green card through your spouse or parent, you may qualify for a waiver of your unlawful presence.

What is “unlawful presence”?

Unlawful presence is time you are in the US without permission. Any time you are in the US without permission for more than six months, but less than one year, and then leave the US, you are barred from re-entering the US for a period of 3 years. Even worse, any time you are in the US for more than one year without permission and then leave the US, you are barred for a period of 10 years from returning!

How does this affect me if I have a family member who is filing a petition for my status?

  • If you are seeking permanent residence through a family petition and you don’t qualify to complete the entire process in the United States, you must proceed through a US consulate in your home country. The second you leave; you may trigger the unlawful presence bar, which means you cannot return for many years. Fortunately, there is a waiver of the penalty available to the spouses and children of US citizens or permanent residents.

Is it the same for everyone who is seeking a waiver?

  • Spouses and children of permanent residents must file the waiver after they depart the US, which means there may be a wait of several months abroad before an applicant can return to the US with a green card. For that reason, when you first discuss your case with an attorney, it may be a good idea to discuss naturalization for the petitioning family member if they are a permanent resident in order to take advantage of the provisional waiver process.
  • The immediate relatives of US citizens may be able to apply for their waiver here in the United States before they depart. That application is called a Provisional Waiver of Unlawful Presence, and it only became available on March 4, 2013. With an approval in hand, there may be only a short stay abroad while the final paperwork for the green card is processed. If you think you qualify, please call for a consultation since the process has changed.

Can I get a waiver if my child is a US citizen?

  • No, unfortunately not. Children do not count as qualifying relatives for waivers of unlawful presence, even if they are 21 years old and eligible to file a petition for you. That is why it is very important to discuss your case with a qualified attorney before departing the US. You may be stuck for many years if you think you qualify and you do not.

Are there things that can make me ineligible for a waiver even if I have a family member to petition me?

  • Yes, there are many things that can disqualify you. Speak to your attorney about your history of entries and exits to the US, your criminal and work history and any prior encounters with US immigration officials to make sure it is okay for you to apply.

What is the process for being granted a Waiver of Unlawful Presence?

Whether you are applying for a Provisional Waiver or a regular Waiver of Unlawful Presence, the requirements to receive the waiver are the same. You must show “Extreme Hardship” to your qualifying family members in the US. That means hardship above and beyond what the average person would experience in your situation. It can be tricky to demonstrate to Homeland Security that you qualify, which is another great reason to contact an attorney and discuss a plan for putting together a great waiver with a strong likelihood of approval.

To learn more about the process and to see if you qualify, please contact the immigration lawyers of Antonini & Cohen today at 404.850.9394 or complete a contact form