+1(212)459-3800 [email protected]

Last year, on March 4, 2013, USCIS began a new provisional unlawful presence waiver program for certain relatives of U.S. citizens.  This program is for individuals who are not eligible to adjust their status to lawful permanent residence (also known as a “green card”) in the United States and who must apply for their green card at the U.S. Consulate in their home country.  Now, they may obtain a waiver of their unlawful presence in the United States before leaving for their immigrant visa interviews at U.S. consulates abroad.  The benefit of getting the waiver in the U.S. is that it shortens the amount of time immigrant visa applicants have to wait abroad while their applications are being processed by the U.S. consulate.  This article reviews the requirements of the program, identifies certain practice pointers to preserve eligibility for the waiver, and examines the impact of such relief.

Eligibility Requirements 

The provisional waivers for unlawful presence are for individuals who are not able to apply for adjustment of status in the United States because they entered without inspection and are unlawfully present.  They also must meet the following criteria.  First, the foreign national must be the spouse, parent or child of a U.S. citizen.  Second, s/he must be the beneficiary of an approved I-130 Petition for Alien Relative and have an immigrant visa application pending at the National Visa Center.  Third, the applicant must show extreme hardship to his or her U.S. citizen spouse or parent.   Fourth and finally, the applicant cannot be inadmissible on any ground other than unlawful presence.   This last requirement is particularly important because it means a person cannot have a prior deportation or removal order, unlawful reentry after removal, or certain criminal convictions.  If there is “reason to believe” that any other ground for denying the immigrant visa application exists, the foreign national is considered ineligible for the waiver and the waiver application will be denied.

What if removal proceedings have commenced?

If the foreign national is currently in removal proceedings, it is important to avoid the issuance of a final order of removal in order to preserve eligibility to apply for the waiver.  Having a final order of removal is another ground of inadmissibility, which requires a separate waiver and which disqualifies an individual from applying for the provisional unlawful presence waiver.  The foreign national should seek to administratively close proceedings in order to apply for the unlawful presence waiver with USCIS.   S/he should show a strong case for the waiver when requesting administrative closure before the Immigration Judge as the Department of Homeland Security is usually not inclined to closing proceedings

Where there is a final removal order, the foreign national could move to reopen proceedings with the Board of Immigration Appeals or the Immigration Court (depending on whether the removal order was appealed or not) in order to terminate proceedings and then apply for the waiver.  Note, however, that motions to reopen generally must be filed within 90 days of the removal order becoming final, and the exceptions to the 90-day filing deadline are extremely limited.

Advantages and Disadvantages of Applying for a Waiver

The major advantage of applying for the unlawful presence waiver from within the United States is that it reduces the amount of time an immigrant visa applicant waits abroad for the adjudication of his visa application by the U.S. Consulate.

Normally, the waiver application is filed after the US Consulate schedules the visa interview, the applicant physically appears at the US Consulate in his home country, and the Consulate determines that the applicant must file a waiver for unlawful presence.  The applicant therefore waits abroad while the waiver application is being decided.  This can be very difficult for a family where the applicant is either the principal breadwinner or primary caretaker of the children.  Separation from family, employment, and an established life is emotionally and financially costly, and the intended objective of this program is to lessen these adverse effects.

By having the waiver approved before departing the US to complete the immigrant visa application at a Consulate abroad, the process at the US Consulate should move very quickly.  In addition, the target processing times for these waivers is three months.

The major drawbacks and risks of this program are 1) only a narrow class of individuals can apply for the waiver; 2) a denial could result in the commencement of removal proceedings or reinstatement of a prior removal order; and 3) there is no guarantee that the U.S. Consulate will grant the immigrant visa even if a foreign national obtains the unlawful presence waiver.

The provisional waiver for unlawful presence is available only to those individuals for whom unlawful presence is the only bar to relief.  Individuals who are subject to other grounds of inadmissibility, such as a prior removal order, unlawful reentry after removal, fraud, or certain criminal convictions are not eligible to apply for the provisional waiver of unlawful presence from within the United States.  They must apply for the unlawful presence waiver from abroad along with any other waivers they may require.

With regard to criminal convictions, USCIS issued field guidance on January 24 2014, clarifying that if the conviction fits within the petty offense exception, the foreign national may apply for the provisional unlawful presence waiver from within the U.S.  Therefore, if an applicant seeking to apply for the provisional unlawful presence waiver has a criminal conviction, s/he should make sure the conviction falls within the petty offense exception – that is, the maximum sentence that could have been imposed for the conviction is one year and the foreign national was sentenced to no more than six months, and provide documentation to support this when applying for the provisional waiver.

One major risk of the program is that if the waiver is denied, the applicant could be placed in removal proceedings.  According to a November 7, 2011 policy memo, the criteria for issuing a Notice to Appear and starting removal proceedings usually involves a criminal conviction, fraud, or unlawful reentry after removal.  With regard to the latter, many foreign nationals are unsure whether they have a prior removal or deportation order.  Some have had turn-arounds at the border when seeking to enter without inspection, which does not result in a formal “removal.”   Others have had very fast proceedings at the border that resulted in an order of removal.  If there is any ambiguity in the foreign national’s immigration history with regard to having a final order of removal, it is best not to apply for the provisional waiver from within the U.S.

The other major risk is that even if a foreign national successfully obtains the unlawful presence waiver, the US Consulate may deny the immigrant visa application as a matter of discretion, and the Consulate’s decision may not be appealed.  A denial would be devastating to the applicant and the family members in the U.S.  The best way to avoid any chance of denial by the Consulate is to thoroughly prepare for the interview.

Provisional unlawful presence waivers are still quite new and how they are being adjudicated by USCIS and treated at the Consulate remains to be determined.   Presently, USCIS reports a 65% approval rate for such waivers.  In the meantime, any foreign national interested in exploring options for obtaining lawful permanent residence in the United States should consult with immigration counsel to fully understand all the available options.

Written by Nadia Yakoob-Sway
SW Law Group, P.C.