How Can I Overcome Unlawful Presence When Applying for a Green Card?

 In Family Based Immigration, Waivers

How to Overcome Unlawful Presence When Applying for a Green Card

Are you someone who entered the U.S without inspection (entered the U.S without being admitted by a border control agent)? 

AND 

Stayed without permission?

AND

 You have an approved immediate relative petition (For example, a U.S citizen/Legal Permanent Resident Spouse or Parent petitioned /or plans to petition you for a green card)?

If you answered YES to the questions above and you have no other inadmissibility issues, then generally you may be able to overcome unlawful presence when applying for a green card

Unlawful Presence

Generally being in the U.S without permission, or without any type of authorized stay, like a visa or green card, after April 01, 1997 triggers a concept in immigration law referred to as “unlawful presence.” Unlawful presence makes someone inadmissible to pursue an immigration benefit, like a green card, while remaining in the U.S and subjects a person to a 3 or 10- year bar of inadmissibility if they depart the U.S.  For more details on “unlawful presence” and how it is triggered, refer to our previous blog post (link below)[1].

Under current law, applicants who have an approved immediate relative petition and unlawful presence typically must travel abroad to their home country to obtain an immigrant visa to return to the U.S lawfully and request admission as a legal permanent resident.

Provisional Waiver

In order to be able to return to the U.S the applicants must have an approved provisional waiver, that waives the applicant’s unlawful presence inadmissibility and allows them to move forward with the green card process.

Typically, applicants can apply for the provisional waiver (I-601A) while they are still in the U.S before they leave to continue with the immigrant visa process and interview abroad.  An approved provisional waiver generally assures the applicant entry into the U.S after completion of the interview process.

If an applicant leaves the U.S without an approved provisional waiver they will not be able to return to the U.S for up to 10 years depending on the length of his/her unlawful presence. Therefore it is vital an applicant submits an application for the provisional waiver or he/she risk the possibility of being barred entry into the U.S.

Eligibility Requirements for the Provisional Waiver

To be eligible for a provisional waiver you must:

  1. Be 17 years of age or older
  2. Be physically present in the U.S to file your provisional waiver application
  3. Have a case pending with the U.S department of State (approved immediate family visa petition)
  4. Will depart from the U.S to obtain the immigrant visa
  5. Be able to demonstrate that refusal of your admission to the U.S will cause extreme hardship to your U.S Citizen OR Legal Permanent Resident SPOUSE or PARENT
  6. Your only inadmissibility is that you entered without inspection and stayed in the U.S without permission for longer than 6 months.

Unfortunately, as the law stands right now, applicants with unlawful presence and an approved visa petition through their U.S Citizen Adult Child do not have a qualifying relationship for the provisional waiver. Therefore, if these applicant’s do not have a U.S Citizen or LPR parent or spouse, they will be unable to qualify for the waiver and will be subject to the unlawful presence bar if they depart the U.S.

In summary, the provisional waiver (I-601A) allows applicants to overcome unlawful presence when applying for a green card if they meet the eligibility requirements.

[1] https://thegrandelawfirm.com/us-without-permission-get-green-card/

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