It is often difficult for a person who resides in the U.S. as an undocumented immigrant to change his or her status and receive an immigrant visa, legal residency, or U.S. citizenship. However, if an immigrant has a U.S. citizen parent, spouse, or child, it may be possible to use a provisional unlawful presence waiver as a defense to deportation and as a way to live in the U.S. legally.
When a person who is unlawfully in the U.S. can qualify for an immigrant visa and eventually a lawful resident card (green card) based on a relationship to a U.S. citizen parent, spouse, or child, they are still required in many cases to leave the U.S. and receive an immigrant visa from a U.S. consulate in another country. This may create a hardship for the family of the person who has to leave because the process of applying for and receiving a visa in order to lawfully re-enter the U.S. can take a long time, and the person may have to wait between three to ten years to reenter the country. It is therefore advisable for a person leaving the U.S. to apply for a provisional unlawful presence waiver before leaving the country for an interview at a U.S. consulate abroad. If approved, the applicant would know before leaving the country if he or she would have to wait out the statutory three to ten years before being allowed to reenter the U.S.
The key to a successful provisional unlawful presence waiver is an applicant’s ability to show that his or her U.S. citizen parent, spouse, or child will suffer extreme hardship if the applicant is separated from them for a long period of time. A provisional waiver does not guarantee that once the person leaves the country to attend a consular interview he or she will be granted an immigrant visa. The waiver removes the mandatory three-to-ten-year bar to admission that would otherwise be applicable before an applicant could return to the U.S. because of having been unlawfully in the country.
If you may have multiple grounds of inadmissibility, you should not apply for a provisional unlawful presence waiver before consulting with an experienced immigration attorney. Grounds for inadmissibility include conviction for certain crimes, being involved with terrorist groups, and several others. Filing for a provisional unlawful presence waiver when an applicant has multiple grounds of inadmissibility, specifically if the person is considered a deportation priority, can trigger deportation proceedings against the applicant in some cases. If you are already in deportation proceedings, you cannot generally apply for a provisional unlawful presence waiver.
Let Us Assist You
If you have an immediate family member who is a U.S. citizen, you may qualify for a green card. Before you begin your application, you should consult an experienced immigration attorney to make sure you put forth your best case and potentially reduce the time you are away from your family while your application is pending. For legal assistance, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
There have been some recent major changes in the political arena that are expected to cause changes to the U.S. immigration policy and how the law is currently applied in some cases. These expected changes have caused alarm because it could mean increased deportation for people who are out of status or who entered the country without a visa. Some cities across the country, including Pasadena, have responded by affirming their status as sanctuary cities in an effort to calm their immigrant populations.
The term “sanctuary city” refers to a city in which a person who is in the U.S. in violation of federal immigration law is not generally prosecuted by the city’s authorities solely based on his or her immigration status. This sometimes means that officials in a sanctuary city will not fully cooperate with federal authorities seeking to apprehend and deport an undocumented immigrant. For example, if an undocumented immigrant is arrested for theft, or a traffic offense, he or she will be prosecuted for the state law charge, but immigration officials will not likely be notified that the person is in custody even after city officials determine the person’s immigration status. Sometimes, even if immigration officials send a detainer request asking to be notified when the person is about to be released, city officials may refuse to honor that request.
Sanctuary cities base their authority to refuse total cooperation with federal immigration authorities on the tenth amendment of the constitution, which basically says the federal government cannot require compliance by states – and by extension the states’ cities – to enforce federal law. However, sanctuary cities cannot intervene to stop deportation. Although sanctuary cities offer some level of assurance that a person will not be deported if he or she is arrested or questioned by city police officers, deportation is still possible if the arrest is by federal U.S. Immigration and Customs Enforcement (ICE) officers. Information gathered during an arrest by city police officers, such as fingerprints, is still passed on to the FBI and eventually to ICE.
There have been suggestions that federal funding to sanctuary cities will soon be reduced until they start cooperating, and that this may cause some sanctuary cities to start cooperating more fully with federal authorities. However, because of Supreme Court cases limiting the way the federal government may put conditions on federal funds to states, sanctuary cities are not likely to be completely cut off from federal funding. In any case, the threat of losing federal funds does not seem to deter cities from declaring they will continue to act as sanctuary cities, and most are reaffirming their status and setting up resources to help undocumented immigrants living within their borders.
Contact Us for Legal Assistance
Whether you are an undocumented immigrant or a person in the country on an immigrant visa or under permanent resident status, you should familiarize yourself with your options in order to be prepared for any future immigration changes that may affect you. For more information, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.