If you have accrued unlawful presence and you are not eligible for adjustment of status, you may be able to file the I-601A provisional unlawful presence waiver before you leave for the consular interview in the foreign country.
Eligibility for the Provisional Unlawful Presence Waiver
You are eligible for the provisional waiver if you are the relative of a qualifying U.S. citizen or Legal Permanent Resident (LPR or green card holder). The qualifying relative is the U.S. citizen or LPR spouse, parent or child. Also, you must currently be in the United States and unlawful presence must be your only ground of inadmissibility.
The USCIS determines whether they will grant the waiver of inadmissibility for unlawful presence based on the extreme hardship of the qualifying relative. If the USCIS approves the waiver, the applicant can leave the United States to attend the consular interview with a provisional assurance that the waived unlawful presence bar will not be a basis to deny the immigrant visa. However, this does not prevent the consular officer from finding other applicable grounds of inadmissibility at the interview in the foreign country. This possibility raises another risk that you will become stuck in the foreign country because of other grounds of inadmissibility. If other grounds of inadmissibility applies to you, you will need to apply for another waiver called the I-601 Extreme Hardship Waiver and wait for a decision on this new application in the foreign country. That can turn into a nightmare for anyone who has already left the United States. Therefore, it is very important to consider carefully whether the I-601 provisional unlawful presence waiver is the right avenue.
Finding of Other Grounds of Inadmissibility
It is important to look beyond your unlawful presence and holistically evaluate your history to determine whether an officer may find other grounds of inadmissibility at the consular interview. For example: How did you enter the United States? Did you falsely claim U.S. citizenship at any time? Do you have a criminal history that renders you inadmissible? Have you been identified as a gang member or affiliate? Did you take other undocumented relatives with you to the United States unlawfully? This is where is it so important to get an experienced immigration attorney, one like myself, to thoroughly evaluate your circumstances. There may also be alternatives to the provisional waiver. Such alternatives are complicated. You’ll likely need help to navigate these alternatives.
Extreme Hardship Factors
Once you’ve determined eligibility for the provisional unlawful presence waiver, you will need to show extreme hardship to the qualifying relative. Extreme hardship is not defined by law but is rather based on the facts and circumstances in each case. The USCIS knows that hardship will result in most cases where an applicant leaves a qualifying relative. Therefore, the Extreme Hardship must be greater than the usual hardships. Factors that may meet the extreme hardship requirements include but are not limited to factors related to education, health, cultural and language adaptation, country conditions, economics and persecution that may result from either being separated from the qualifying relative or having to relocate with the qualifying relative(s) to the foreign country. You will need to gather convincing and verifiable evidence to show that either relocation or separation or both, will result in this extreme hardship. The officer has discretion based on whether you’ve proven your evidence through a preponderance of the evidence and whether the favorable factors of granting the waiver outweigh the unfavorable factors. Therefore, it is also important to include other evidence of your character, your work ethic, your respect for the law and order and how you’ve contributed to the community. The USCIS Policy Manual is a good resource to educate yourself about the requirements of the Extreme Hardship.
Alternatives to the provisional unlawful presence waiver
The idea of leaving the country, even with the approved waiver can prove nauseating for some. It is important to avoid the risk of leaving the country and getting stuck in a foreign country at all cost. You should get advice about whether an alternative to the waiver exists. For example, under INA section 245(i) and the LIFE Act Amendment of 2000, the beneficiary (applicant) and certain derivative spouses or children on a petition filed after January 14, 1998 and before May 1, 2001 will be allowed to adjust status despite the illegal entry unto the United States. The applicant must prove physical presence in the United States on December 21, 2000. The beneficiary would only need to pay a fine.
Another potential alternative to the provisional waiver is if CBP officer allowed entry into the United States without asking questions or requiring valid entry documents. This is pursuant to case law in Matter of Quilantan. Another case in Matter of Areguillin, the Board of Immigration Appeals held that an applicant who presents themselves at the border for questioning, without falsely claiming U.S. citizenship has satisfied the requirement of inspection and admission at the border under INA section 245(a).
Another tool is the use of the advanced parole tool for DACA and TPS recipients. If they leave the United States with the advanced parole, there is no trigger of the unlawful presence bar. Therefore, despite leaving the United States and returning, they should be permitted to adjust status as long as unlawful presence was the only ground of inadmissibility.
There is also parole granted to the spouses, children and parents of active duty military personnel, reserve members and veterans. If the family member is already physically present in the United States without inspection or admission, then they can be granted such parole.
Another avenue depends on the type of visa you are applying for such as VAWA (victims of violence, abuse and cruelty), trafficking and victims of crime (T and U visa). The USCIS may waive the grounds of inadmissibility, including unlawful presence based on an exemption or an I-601 Extreme Hardship Waiver. In these cases, the applicant does not need to leave the United States to apply for the waiver.
NOTE: As always this is for informational purposes only and is not legal advice. Consult an attorney for advice regarding your particular circumstances.