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.

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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.