Provisional Unlawful Presence Waiver
If a foreign national has been in the U.S. for longer than their current visa allows, they are required to travel abroad to obtain a new immigrant visa. However, if they have been in the U.S. more than 180 days, they may have to obtain a waiver of inadmissibility in order to overcome bars to their returning. A provisional unlawful presence waiver can help in overcoming the limitations on re-entering the U.S. It can also help achieve citizenship goals.
If you hope to enter the U.S. after you’ve overstayed your visa for a long period of time, you need an immigration waiver. A Columbus, OH immigration attorney at Nesbit Law Office can help you obtain one. Call us today for a consultation.
Bars for Unlawful Presence in the United States
When a person enters the United States illegally or overstays their visa, their ability to obtain lawful permanent residence through a green card becomes limited. Unlawful presence is an offense taken seriously by the United States. It is subject to criminal punishment, including deportation and a bar from returning to the country.
Unlawful presence in the United States is illegal. It can mean a three to 10 year ban from visiting or coming back to live in the country. For many unlawful immigrants, this means years of separation from immediate family members. Deportees must jump through a number of hoops in order to return to the United States. They are also often required to obtain an immigration waiver.
Undocumented immigrants who are considered to have an unlawful presence in the United States may be subject to multi-year bars from returning. The length of the bar depends on the amount of time they have accrued an unlawful presence. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 established a “3 or 10 year bar.” This bar may be imposed on immigrants who seek re-entry after unlawful presence.
Immigrants who enter the United States illegally or overstay a visa have accrued a status of “unlawful presence.” Once they have been in that status for more than 180 days, but less than one year, they will be given a three-year bar from returning to the United States. Those who extend their illegal stay for more than a year will be given a 10-year bar from returning.
Seeking a Provisional Unlawful Presence Waiver
While a person may be given the status of being in the United States under an unlawful presence, they may also be given an immigration waiver that will allow them to avoid the three or 10 year bar from reentering the United States. This waiver is called a Provisional Unlawful Presence Waiver of an I-601A Waiver.
Previously, the process of obtaining a waiver could take more than a year. This meant that spouses and children of U.S. citizens could be separated from their families for a long period of time. However, a new program began in 2013. It allows eligible people to wait for the results of their applications while still in the United States.
The I-601A Waiver allows relatives of permanent U.S. residents who are considered “inadmissible” to request an exemption of the bar for unlawful presence before leaving the United States. This is also called a “stateside waiver application.” Deportees may stay in the United States while waivers are being finalized and decisions are being made.
Once a waiver is approved by the U.S. Citizenship and Immigration Services (USCIS), the individual is often required to attend appointments for immigrant visas in their home countries. They can still return to their families in the United States after their visits to the country of origin.
Eligibility for an Immigration Waiver
An immigration waiver, or I-601A Waiver, is available to anyone who meets the following requirements:
- At least 17 years of age;
- Physically present in the United States;
- In the process of obtaining an immigrant visa;
- Inadmissible to the U.S. because they have a condition of unlawful presence;
- Can show that if the waiver is denied, the U.S. citizen spouse or parent will suffer undue hardship;
- Willing to leave the U.S. to obtain an immigrant visa; and
- Otherwise admissible to the U.S.
It is important to note that if the United States decides that you are ineligible for a visa to return to the United States, then your Provisional Unlawful Presence Waiver will be revoked.
Immigration Waiver Application
The waiver process is a separate application process that must be completed at the same time as the visa application process. First, the resident petitioner, or sponsor, must request an I-601A Waiver Application. This must be mailed after your Form I-130, I-140, or I-360.
You must notify the National Visa Center (NVC) of your plans. They will then make a decision about your waiver application. Failing to notify the NVC could result in a situation where your consulate interview is scheduled before you are ready.
There is a $630 fee to file the Form I-601A, and applicants under the age of 79 must pay an $85 fee for fingerprinting. Fee waiver requests are not considered for this process. The USCIS will conduct a full criminal record background check before they make a determination about your waiver.
Learn More About Provisional Unlawful Presence Waiver
Entering the country illegally or overstaying a visa can result in a bar from re-entering the United States. However, there is an option to avoid the bar with an immigration waiver. Contact Nesbit Law Office today for more help with this process.
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