Unlawful Presence Part 2 – Waivers

In my last post I discussed how an unlawful presence is incurred and how it can bar you from immigrating to the United States or even from getting a temporary visa. In this article, I would like to discuss how to get a waiver.

Before doing that, let’s have a look at some special scenarios.

Unlawful presence is only triggered when someone leaves the United States. If you have entered the country legally, let’s say on a tourist visa for example, your visa has expired and you’ve married a US citizen, you would be able to process your case within the United States and thus not have a problem with unlawful presence (please note that if you entered on the Visa Waiver Program and overstayed you should consult an immigration attorney before adjusting status to determine whether or not you are able to adjust your status).

Unlawful presence comes into the picture when you’ve entered the country illegally in the first place and have no way of adjusting your status or of processing your case within the country. The moment you leave the United States to get a visa from a US embassy in another country, you trigger the unlawful presence bar.

So, what do you do, when you are in this situation?

Waiver for unlawful presence.

The I-601 waiver – The most common cases are Green Card cases, where somebody wants to come back to the United States to be with their spouse.
To get a waiver of unlawful presence, you have to show extreme and unusual hardship to your US citizen or permanent resident spouse (if your application is based on marriage to a US citizen).

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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