By Devin Connolly & Nancy E. Miller
In 2013 the U.S. Citizenship and Immigration Service (“USCIS”) began allowing people to apply for a waiver of their unlawful presence before they departed the United States. This waiver was limited, but it still changed so many lives for the better. The waiver has now been greatly expanded, and this change is sure to benefit even more families who are simply trying to pursue the American dream.
Before discussing the expansion of the Provisional Unlawful Presence Waiver, we should first discuss how the waiver works. As a general rule, in order to complete processing for a green card while in the United States, the applicant must be in status. That means s/he must have entered the United States with inspection (with papers) and their visa must still be valid. Two exceptions exist. An intending immigrant who is the spouse, parent or child (under 21) of a United States citizen may complete processing in the United States if they entered with papers even if the visa has expired. And one who is grandfathered under Section 245(i) of the INA may complete processing in the United States as long as they pay the $1,000 penalty. All others, including those who entered as a fiancé of a United States citizen and did not marry their petitioner, must return to their home country and complete the processing for their green card at the U.S. Consulate. While this is obviously inconvenient, it is potentially much more than that. Because the foreign-born individual who has resided in the U.S. without lawful immigration status triggers an automatic unlawful presence 3-year or 10-year bar from returning to the U.S. as soon as they depart the country. A person subject to this bar may only apply for a waiver if they have a U.S. citizen or green card holding parent or spouse who would suffer extreme hardship if the applicant cannot return in less than 10 years. Historically, the non-citizen could only request a waiver of the unlawful presence bar after they left the U.S., thereby guaranteeing that they would be separated from their family, employment, and overall life in the U.S. for potentially a year or more.
However, as stated above, in 2013 the USCIS took steps to alleviate these unnecessary break-up of families for such an extended period of time. The USCIS began to allow individuals to apply for a waiver of their unlawful presence before they ever left this country. They still ultimately had to leave the U.S. and apply for permanent residence status abroad, but the amount of time they were separated from their families was reduced from months or years into mere weeks, or sometimes even days.
While the enactment of the Provisional Unlawful Presence Waiver was great progress, it was not perfect. Unfortunately, it was limited to certain people, such as spouses of U.S. citizens or to those who had a parent that was a U.S. citizen.
But now, ALL beneficiaries of an approved Immigrant Visa Petition are eligible to apply for a Provisional Unlawful Presence Waiver so long as they can demonstrate hardship to a U.S. citizen or permanent resident spouse or parent. It does not matter if the petition was filed by a parent for a married son or daughter, by a child for their parent, or even by an employer, or any other category. Applicants in these categories were not even eligible to apply before this expansion!
Remember, simply having an acceptable qualifying relative (U.S. citizen or permanent resident spouse or parent) is not sufficient. To be granted the waiver, the applicant must establish that their qualifying relative would suffer “extreme hardship” if the applicant was not granted the waiver and permanent resident status. As with all waivers, the burden is on the applicant to prove that he or she is eligible. And, USCIS assumes that family members love each other and will miss each other so that, in itself, is not enough. A strong argument persuasively documented is essential to a successful resolution of the waiver application process. But, thankfully, so many more deserving people can now apply.
The changes to the Provisional Unlawful Presence Waiver are poised to help many people. Any person who thinks they may benefit from this change is encouraged to consult an experienced and knowledgeable immigration lawyer about this wonderful path to legal status without significant separation from family.