Provisional Unlawful Presence Waivers
The provisional waiver program exists to shorten the length of time that United States citizens are apart from their immediate family members, including their spouses, children and parents, while those family members are applying for permanent residence in the country. The program lets people who are applying for permanent residence to obtain the provisional unlawful presence waiver while they are in the US and prior to leaving to take part in an immigrant visa interview in their home country. Anyone who has spent over six months or 180 days in the US faces a ban for unlawful presence for a period of three years. Individuals who have been in the country for over one year face a ban for unlawful presence for 10 years. In the past, immediate family members were unable to file a waiver unless they had already undergone an immigrant visa interview in their country of origin. This meant they needed to get a waiver outside of the US to avoid the unlawful presence situation prior to returning to the US. Fortunately, under the provisional waiver process, the individual can see the majority of the process conclude while they are still in the United States.
Eligibility for the Provisional Unlawful Presence Waiver
In order for a person to be eligible for the provisional unlawful presence waiver, they must be inadmissible to the US only through unlawful permanent residence. They must prove that, without the waiver, their immediate family member who is a US citizen or lawful permanent resident would experience extreme hardship. However, parents of US citizens are ineligible for the waiver program. However, individuals who faced prior removal but whose proceedings were ended or dismissed are eligible to apply for the provisional unlawful presence waiver. In addition, if Immigrations and Customs Enforcement (ICE) canceled a person’s Notice to Appear (NTA), that individual can apply for the waiver as well. Individuals who are free to apply for the provisional unlawful presence waiver must fit the following categories:
- The individual must be physically in the US when they file the application for the waiver
- The person must be no younger than 17 years of age
- Applicants must have already filed an approved immediate relative petition and must have already paid the processing fee for the immigrant visa
- Must be an immediate relative of a citizen of the United States or a lawful permanent resident
- The person must only be inadmissible to the US based on unlawful presence
- Individual must be able to demonstrate that an immediate relative has extreme hardship due to their absence
- The individual must be favorable by USCIS after their waiver application has been reviewed
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What Makes Someone Ineligible for the Provisional Unlawful Presence Waiver?
Any other relatives not previously mentioned are ineligible for the provisional unlawful presence waiver. In addition, people who are inadmissible to the US based on anything other than unlawful prescience are ineligible as well. Other scenarios that make a person ineligible include fraud, misrepresentation, medical reasons and false claims of US citizenship.
Extreme Hardship and its Requirements Regarding the Waiver
If a situation of extreme hardship exists, the individual applying for the waiver must prove that hardship for themselves or their immediate relative. Hardship to the applicant or their child only stands if it creates an extreme hardship to the person who is a US citizen or their spouse or parent. USCIS considers the following factors as being extreme hardships:
- An immediate relative’s health is suffering and the individual requires ongoing or special care or treatment that renders them unable to travel and thus, requires the applicant to be in the US
- The applicant’s home country is undergoing war or political upheaval
- Financial problems such as loss of business, employability or cost of caring for family members
- The applicant has lost their opportunity for higher education, has a lower quality education or is unable to speak a foreign language
- There is a presence of more US citizen or lawful permanent resident family members in the US in addition to immediate relatives
- The applicant has community ties within the US
The best thing to do if you live in the Orlando area and need a provisional unlawful presence waiver is to get in touch with us at Colombo and Hurd. We will connect you with an experienced immigration attorney who can help you throughout the application process. Contact our offices for a consultation and to ask any questions.