USCIS Expansion: Unlawful Presence Waiver


In late August of this year, the United States Citizenship and Immigration Services expanded the opportunity to obtain the “unlawful presence” waiver while remaining in the United States.  This is a rather complicated topic, but understandable in the right scenario.


In a recent case of ours, a U.S. citizen spouse sent an I-130 petition to immigration services (USCIS) to sponsor their husband for the green card.  The husband entered the U.S. without permission or a visa and so he was unable to simply apply for permanent residence in the U.S., and would need to leave the U.S. to get an immigrant visa at the U.S. Consulate.  The problem lies that when the husband leaves the U.S. to get the visa, this “departure” triggers a “ground of inadmissibility” that would then not allow the person to come back to the U.S. with the visa.  This denial can be cured by either staying outside of the U.S. for a specific time frame, or applying for a waiver.


The magic of this provisional waiver is that the husband applied for the waiver while in the U.S. Our husband needed to show “extreme hardship” to his U.S. citizen spouse, and with the help of our firm, he was able to and was approved.  Now, when the husband goes to the U.S. Consulate, he can show that he has a waiver, and be approved for the visa to come back as a permanent resident.  This is a great opportunity because it takes a long time to receive a decision from USCIS, and so to be able to stay in the U.S. while waiting limits the amount of family separation time.


The expansion of this waiver now includes all immigrant visa categories, including I-140 immigrant worker petitions and all other I-130 relative petitions.  This means that if a person is sponsored by someone other than a U.S. citizen spouse, child, or parent; and they have a qualifying relative, then they can apply for this waiver while in the U.S.  The expansion is a great step in solving the problem of family separation, and an opportunity to cure a problem that was once only curable outside of the U.S.


Another important thing to note is that with the expansion of the waiver, there are still limits to what it can fix.  A person with other immigration and/or criminal violations may not qualify.  With a thoughtful evaluation, a person may save themselves time and money in solving their immigration problems or knowing that it will be a little more complicated than applying for a provisional waiver.


We are available to help with your immigration evaluation.  Simply contact one of our experienced attorneys for a consultation.


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