What is an unlawful presence waiver? Do I need an unlawful presence waiver?
An individual who is present in the United States illegally for over 180 days but less than 1 year is barred from returning to the United States after departure for 3 years. Similarly, an individual who is present in the United States illegally for one year or more is barred from returning to the United States after departure for 10 years.
A typical scenario of an individual who needs an unlawful presence waiver would be one in which the individual enters the United States illegally and later marries a U.S. Citizen. Previously, that individual would have to leave the United States and apply for a waiver of the 3 or 10 year bar abroad in order to reenter the United States as a lawful permanent resident (i.e. with an immigrant visa or as a greencard holder). Now, with the unlawful presence waiver, that same individual can apply for the waiver here and after approval, return to their home country only to receive their immigrant visa. This significantly shortens the amount of time the individual must be separated from his U.S. family.
When can I apply?
USCIS (Immigration) will begin accepting application on March 4, 2013.
What is the process to apply for an unlawful presence waiver?
First, the individual must be the beneficiary of an immediate relative approved I-130 Petition for Alien Relative. The immediate relative category only includes spouses of U.S. Citizen, parents of U.S. Citizens who are at least 21 years of age, and minor children of U.S. Citizens.
After approval of the immediate relative approved I-130 Petition, the individual must pay the immigrant visa processing fee, and submit the unlawful presence waiver to USCIS. In his or her request for a waiver the individual will have to prove that their U.S. Citizen spouse or parent will suffer extreme hardship as a result of separation with the individual. The spouse or parent need not be the petitioner of the I-130 Petition but the spouse or parent MUST be a U.S. Citizen, status as a lawful permanent resident is not sufficient. Additionally, extreme hardship to your child is not sufficient.
If the waiver is granted, an interview will be scheduled in the individual’s home country and the individual must still leave the U.S. and apply for and receive an immigrant visa abroad before returning to the U.S. Normally at time of interview individual must also schedule a medical examination.
What are the requirements of an unlawful presence waiver? What are the criteria?
You must: be 17 years of age or older; be the immediate relative of a U.S. Citizen (see above discussion); have an approved immediate relative I-130 Petition, have the Immigrant Visa case pending with the Department of State (DOS) and paid Immigrant Visa processing fee to the DOS; demonstrate extreme hardship to U.S. Citizen spouse or parent (see below); be physically present in the U.S. to file and provide biometrics (fingerprints); and NOT have been previously scheduled for an Immigrant Visa interview.
How can I show “extreme hardship?”
Extreme hardship can be a combination of multiple factors. You will want to include documentation regarding any health problem suffered by the U.S. Citizen spouse or parent, financial documentation, and personal considerations like the presence of other relatives in the U.S. and community ties. There may also be other special factors as a result of your specific condition and/or conditions in your home country. A qualified immigration attorney can guide you as to the types of documentation that would be most beneficial to your case.
What is the fee for filing an unlawful presence waiver?
The filing fee for an unlawful presence waiver is $585.00 plus an $85 biometrics (fingerprint appointment) fee (total: $670). Note this fee is after and apart from the I-130 Petition filing fee and the immigrant visa fee. Additionally, all USCIS fees are apart from the fees charged by your attorney to prepare your case.
How long will it take for my unlawful presence waiver to be approved or denied?
USCIS has not set processing time goals yet because it is unclear to USCIS just how many individuals will take advantage and apply under this new process.
What if I am in removal (i.e. deportation) proceedings or what if I have an order of removal (i.e. deportation) pending?
Anyone with a final order of removal, or who has been previously removed, will not be eligible for the new waiver process. Additionally, if you are currently in removal proceedings you also will not be eligible for the new waiver process. Note, if you fall within one of these categories although you may not apply for the new waiver process, you may have other forms of relief available to you and you should consult with a qualified immigration attorney.
Additionally, if you have had your removal proceedings administratively closed and your case has not been re-calendared you may file for an unlawful presence waiver.
Will having a waiver pending give me status?
No, a pending waiver will not give you legal status. You cannot travel outside of the United States while your waiver is pending and you will not receive an employment authorization document (i.e. work permit) while your waiver is pending. Finally, a pending waiver will not protect you from removal (i.e. deportation) proceedings.
What if denied?
You cannot appeal the denial of your unlawful presence waiver but you can reapply in order to have a second opportunity of an approval. Notices to Appear (the charging document that places individuals in removal i.e. deportation proceedings) will continue to be issued according to policy guidelines. It is very important to consult with a qualified immigration attorney to determine if you are at risk of being placed in removal proceedings.
What if I have other questions?
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