Sorting Fact from Fiction: The New Unlawful Presence Waiver
In March of this year the USCIS (U.S. Immigration) released a provisional unlawful presence waiver (form I-601a).
With this waiver, individuals who are inadmissible to the U.S. for unlawful presence (for example, in the U.S. illegally after entering illegally) can apply for a waiver of the three and ten year bar (bars to reentry as a result of illegal presence in the U.S.), and, after the waiver is approved, travel to their home country to return with their immigrant visa (a greencard in the U.S.)
Previously, individuals had to wait in their home country, separated from their families and lives in the U.S. for long periods of time and risk not being able to return to the U.S. for three to ten year periods. With this new waiver, available as of March 2013, your departure from the U.S. can be minimal!
Because the unlawful presence waiver has only been around a short time, we have seen many clients with misconceptions about the waiver – here are the top five common misconceptions we’ve encountered thus far:
- I can get a work permit while my waiver is pending
- I can leave the U.S. while my waiver is pending
- I am in lawful status while my waiver is pending
- I can get my greencard without leaving the U.S.
- I cannot contact an attorney until I have an approved immigrant visa (I-130) petition
FALSE. Your pending unlawful presence waiver does not provide you with any interim benefits. You cannot get employment authorization (a work permit) on the basis of your pending waiver. After approval of your waiver and return from your home country with your immigrant visa, as a lawful permanent resident (greencard holder) you will be able to work legally in the U.S.
FALSE. You should not leave the U.S. while your unlawful presence waiver is pending. Departure from the U.S. after a period of illegal presence will result in a bar to reentry of three or ten years depending on how long you were in the U.S. illegally. There are waivers for individuals who are outside of the U.S. Please contact one of our offices if you are already abroad to discuss your options.
FALSE. You are not considered to be in lawful status while your unlawful presence waiver is pending. After approval of your waiver and return from your home country with your immigrant visa, as a lawful permanent resident (greencard holder) you will then be in lawful status.
FALSE. After your unlawful presence waiver is approved you must leave the U.S. to obtain your immigrant visa at a U.S. embassy or consulate abroad.
FALSE. Although you must have an approved immediate relative immigrant visa (form I-130) petition approved in order to FILE your unlawful presence waiver, you can still contact our offices while the petition is pending or even before the immediate relative petition is filed.
Word of mouth isn’t enough
There are many myths circulating around this new unlawful presence waiver but we at Ranchod Law have the knowledge to help you separate fact from fiction. We’ve already filed numerous unlawful presence waivers and we look forward to helping you on your case.
Let us prepare your Waiver Case
We can work on preparing your waiver case while your immediate relative petition is pending or actually help you with the filing of your immediate relative petition.