Massachusetts Legal Blog

Eligibility for Provisional Unlawful Presence Waiver – Massachusetts Immigration

Immigration Documentary Requirements

In the past year, living in the United States without immigration documentation has become increasingly more difficult. Immigration documents are required to get a driver’s license, enroll in some schools and colleges, work, sign some leases, and be approved for loans. More and more, people in the United States are trying to find a way to file for legal immigration status.

Some people are lucky enough to have a relative who can file for them, like a parent, brother, sister, spouse, or child. In some cases, even aunts and uncles can file. Others are able to find a company who is willing to sponsor them to stay in the United States. And some others ask Immigration to allow them to stay in the United States based on a humanitarian reason to stay, like a fear or returning to their home country or abuse by their spouse.
Unlawful Presence and Penalties

A non-immigrant (temporary) visa is issued depending on the purpose for visiting the USA (for example, tourist, student, fiancée, or working visa). All temporary visas have expiration dates. Tourist visas are typically valid for 3-6 months, and student visas are valid for the length of the study.  A non-immigrant cannot stay in the USA beyond the expiration date of his stay.  Choosing to stay after the expiration will deem him/her as having unlawful presence in the US. If caught by US immigration authorities, the non-immigrant can be ordered removed and deported to his home country.

A non-immigrant may be allowed to change his/her status (such as when he gets sponsored by his company, gets adopted by US citizen parents, or gets married to a US citizen) or extend his/her status prior to the expiration date of his visa. However, should that request be denied or filed late, the non-immigrant may be faced with a record of unlawful presence. And, in general, a non-immigrant with unlawful presence will be considered ineligible for a green card (legal permanent resident status).

Penalties for Unlawful Presence

In general, even one day of unlawful presence can make a person ineligible to get a green card. A person who stays beyond his visa expiration date and accrues 180 days of unlawful presence or more will not be allowed to re-enter the US for three years after leaving. The three-year bar increases to ten years if a person has one year or more of unlawful presence.  These individuals are deemed “inadmissible” during the bar.

The Provisional Unlawful Presence Waiver

Some foreigners who may otherwise be eligible for a green card but for their unlawful presence must go back to their home countries and await their immigrant visa to reach the overseas US consulate. This causes a great deal of pain and anxiety for couples or families because they are forced to separate from each other.

In cases where spending 3 or 10 years apart would be exceptionally hard, Immigration has allowed exceptions to be granted so that the foreign family member may return more quickly. Traditionally, the foreign family member would have to leave the United States and ask for the exception (a waiver) at the Embassy. The time waiting for Immigration’s decision would be especially difficult, since they were not certain if they would be able to return in 3 months or 3 years.

The Secretary of the Department of Homeland Security or DHS has now created a process to limit the amount of time spent apart. Now, families can stay together in the United States while they wait for the Immigration to decide if they are eligible for this exception – called a provisional waiver. Once they are approved, the foreign family member may leave and begin a far accelerated process to obtain their green card abroad. However, this special process is only for unlawful presence – if there are difficulties in the situation, like a criminal history, then the application must processed using the traditional method.

The non-immigrant must meet all of these eligibility requirements:

●    Must be 17 years of age or older;
●    Must be an immediate relative (spouse, parent, or child) of a US citizen;
●    Must physically be in the US;
●    Have an approved immigrant relative petition (I-130 or I-360);
●    Have a pending immigrant visa case where the fees for visa and affidavit of support have    been paid to       the National Visa Center;
●    Must be able to show extreme hardship if he / she is separated from the U.S. citizen parent, spouse, or      child;
●    Must not be inadmissible under any ground except for unlawful presence; and
●    Must not have been deported from the US previously.

Once the waiver is approved, the applicant needs to leave the US immediately and attend the immigration proceedings of his/her case at a designated embassy or consulate in his/her home country.

Proving extreme hardship for a provisional waiver can be a complicated and difficult task, as most waivers that are denied are due to a lack of extreme hardship. If you feel that you or a relative may be eligible for a waiver, contact the Immigration Division at Shapiro Law Group, PC. Our immigration attorneys are experienced in waiver applications and consular processing and are ready to assist you present the best case possible to keep your family together.

By Anna Shapiro