In this article, we will cover the basic requirements of the unlawful presence waiver.
The first requirement is that you must be physically present in the U.S. If you are currently abroad, please contact our office to discuss other waivers that might better suit your needs.
Secondly, you must be at least 17 years old at the time of your filing. Remember, however, that if you are under the age of 18 and illegal in the country you may be able to return to your home country and then return back to the U.S. legally without facing a three or ten year bar.
Please contact us to discuss this prior to your departure. Also, you may be eligible for deferred action as a childhood arrival (please return for a future article with a more in depth explanation or contact our offices to discuss your possible eligibility).
Thirdly, you must be the beneficiary of an approved immediate relative (Form I-130) petition. Note that not just any petition (I-130) will suffice. A U.S. Citizen can file in the immediate relative category for their spouse, parent (the U.S. citizen must be over 21), or their unmarried minor child. Additionally, your immigrant visa case must be pending with the Department of State (DOS) and you must have paid the immigrant visa processing fee. We can also help you with the DOS processing.
Also, you must only be inadmissible for your unlawful presence. If you are also inadmissible because of a criminal issue, this specific waiver is not available to you. Please contact our offices to discuss other options.
Finally, in order to obtain this waiver, we need to prove on your behalf that a denial would result in extreme hardship to your U.S. Citizen spouse or parent. Note that you can only use extreme hardship to a child in so far as it would affect your spouse or parent.
Unfortunately, this waiver is not currently available to the relatives of lawful permanent residents (greencard holders) but we encourage you to contact us nonetheless to discuss possible naturalization (U.S. citizenship) for your relative or other options currently available.
We will publish articles on the types of papers or proof you will need to gather in order the strengthen your case for extreme hardship and also an article on the avenues to get your greencard after entering the U.S. illegally, for example, via the border.