On August 29, 2016, the U.S. Citizenship & Immigration Services expanded an existing program for provisional unlawful presence waivers. Under the new guidance, this program allows certain applicants for immigrant visas to request a waiver of the immigration violation for unlawful presence under INA 212(a)(9)(B). Here are five things you need to know about this program:

1. It waives ONLY ONE immigration violation: Unlawful Presence

There are a number of immigration violations that require waivers, such as criminal convictions or fraud or misrepresentation. This new waiver program only waives unlawful presence, meaning time in the United States without permission or a valid visa.

2. It is available to those with an approved relative petition (Form I-130), with some exceptions.

You must be in the process of immigrating to the United States, which begins with filing the relative petition. The petition can be from any relative, such as a parent, spouse, brother or sister. Once the relative petition is approved you can begin the waiver process, but not before.

It is also important to note that this waiver may not be available to you if you do not meet all the requirements or if your immigrant visa case has been terminated because you failed to contact the National Visa Center or the Department of State for more than 1 year.

3. You MUST show extreme hardship to your US Citizen or Lawful Permanent Resident Spouse or Parent. Children are not included.

In order for the waiver to be approved, you will need to demonstrate that your U.S. Citizen or Lawful Permanent Resident spouse or parent will suffer extreme hardship. Extreme hardship can be difficult to prove without the assistance of an attorney because it must go above and beyond the hardship that normally occurs from deportation or removal.

We can help you with this process by presenting arguments and documentation demonstrating why you cannot relocate to your home country with your family in addition to showing what will happen if you are separated from your family.

4. You may be eligible even if you have a removal order entered against you, but you have not yet departed the United States.

Under the old regulations from 2013, an applicant could not apply for this type of waiver if s/he was subject to a final order of removal. The new regulations now allow certain applicants to apply for the new waiver even if s/he is subject to a final order of removal.

However, this will add another step to the process by requiring the Attorney General to consent to your readmission before you can apply for the new waiver. You can request this consent on Form I-212, Application for Permission to Reapply for Admission. This requires the applicant to prove why the Attorney General should allow the applicant to be readmitted to the United States. The following factors are considered:

  • Close family ties in the United States
  • Evidence of reformation and rehabilitation
  • Former length of lawful presence in the United States
  • Good moral character
  • Recent nature of deportation
  • Need for applicant’s services in the U.S.
  • And more…

Negrette Law can help you evaluate the strength of these factors in your case and present the strongest argument on your behalf. It often involves a detailed analysis of your life as it is in the United States weighed against the life you would have in your home country.

5. You should stay in the United States until you receive a decision from USCIS

As with many immigration applications and petitions it is important to remain in the United States until you have a decision on your application. If you depart the U.S. before a decision you may trigger additional penalties, which may not be fixed by the waiver approval.

It is important to note, however, that if you have a final order of removal entered against you, you are risk for immediate removal.

For more information please go to www.uscis.gov/I-601a

The information provided in this post is not legal advice for your particular case.

Call Negrette Law, P.C. for a Strategy Session: (619) 356-1448