Unlawful Presence Part 4 – What is the procedure for getting a Hardship Waiver for unlawful presence

The first step in the Immigrant Visa process is to file a marriage petition in the US, (I-130), along with supporting evidence.

Once the marriage is reviewed by USCIS and the I-130 is approved, the case is forwarded to the National Visa Center (NVC). The NVC will then request more documents to evaluate if the foreign national is eligible and forward the case to the US embassy in the applicant’s native country.

The embassy will schedule a marriage interview to evaluate whether the marriage is legitimate. The embassy will also identify different bars to immigration (grounds of inadmissibility). There are several bars to immigration, but by far the most common is the unlawful presence bar.

If a foreign national is subject to unlawful presence, the embassy will ask them to file an I-601 hardship waiver. This application must be thoroughly prepared and contain supporting evidence to prove that the United States citizen spouse would face extreme hardship if the foreign national was forced to return to their home country.

The I-601 waiver is not processed by the embassy, but forwarded to the nearest immigration office in the native country of the applicant. The decision can take several months or longer, during which time the applicant will have to wait in his or her country.

Once the waiver is granted, the person can return to the United States as a permanent resident.

However, if the waiver is denied, the person has the right to appeal. If the appeal is denied, they will have to wait outside the United States for either 3 or 10 years, even if they are married to a US citizen or have children in the United States.

It is very important to be well prepared and have an experienced immigration attorney represent you in this process. For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.

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