UNLAWFUL PRESENCE WAIVERS

By: Robert L. Reeves & Nancy E. Miller

Given full freedom of choice, most people who are already in the United States and are eligible for a green card would prefer to complete the process without having to leave.  However, that is not always possible.  In order to be eligible to adjust one’s status to that of a lawful permanent resident, an intending immigrant who is in the United States, must (with two exceptions) be currently in status.  The first exception is if one was inspected and admitted at the time of entry and is applying for adjustment based on being the spouse of a U.S. citizen, parent of an over-21-year old U.S. citizen or child (under 21 years old) of U.S. citizens.  The second exception is if one is the beneficiary of a family or employment-based petition that was filed on or before April 30, 2001 and was approvable when filed. 
 
If the alien is not eligible to adjust, he will have to apply for his green card at the U.S. Consulate.  If he has been in the United States illegally for 6 months or more at the time he leaves, he will have incurred a 3-year bar before he is permitted to return.  If he has been in the United States illegally for one year or more at the time he leaves, he will have incurred a 10-year bar for unlawful presence.

Not everyone who is in the United States illegally incurs unlawful presence.  There are some exceptions.  Minors do not incur unlawful presence until they turn 18 plus 180 days.   Aliens with a bona fide application for asylum do not incur unlawful presence while the application is pending, unless they have worked illegally.  Battered women or children or victims of a severe form of trafficking in persons may not incur unlawful presence.  This list is not exhaustive.  Immigrants should consult an immigration expert to determine if they have, in fact, incurred unlawful presence. 

If they have, they may be eligible for relief.  The bars do provide for a waiver if the intending immigrant has a United States citizen or lawful permanent resident parent or spouse who would experience extreme hardship if the alien were not permitted to live in the United States.  Note that a child is not a qualifying relative for the waiver. 

Many consulates apply a very hard standard in determining whether or not extreme hardship to the qualifying relative exists.  Among the factors that the officer considers are: family ties in the U.S., other ties in the U.S., ties to home country, medical hardship, economic hardship, loss of opportunity for education or higher education, lack of knowledge or familiarity with language culture, religion or ethnicity in the home country, and political conditions in the home country.  The officer weighs how these factors will affect the qualifying relative.  Hardship to the applicant for a waiver does not count except as to how it affects the relative.  Even if the officer determines that sufficient hardship exists, the officer can deny the waiver in the exercise of discretion.  In determining whether he should exercise discretion, the officer weighs the positive factors (alien’s service in the military, alien’s service to the community, other evidence of the alien’s good moral character) against the negative factors such as the existence and nature of any criminal convictions, history of immigration violations, failure to pay child support.  While the law holds that good moral character does not mean perfect moral character, how one conducts oneself in the United States can have a definite impact on whether the waiver is granted. 
The law is extremely harsh for those who have coupled prior unlawful presence with a subsequent unlawful reentry.   If the intending immigrant has been unlawfully present in the United States for an aggregate period of more than 1 year or he has been ordered removed and he enters or attempts to reenter the U.S. unlawfully, he incurs a lifetime bar and must wait 10 years from the date of his last exit from the U.S. before he is eligible to apply for a waiver.

Regardless of when the application is filed, it is essential to provide substantial evidence to support the allegations of hardship.  Mere statements from the applicant and family are not sufficient.  It takes an expert to know how to put together a winning waiver.  Because so much is riding on the application for a waiver, one should always consult an attorney experienced in immigration law to assist him in applying for a waiver and a green card. 
For more information on waivers, be sure to watch “The Immigration Experts”, Reeves & Associates’ new immigration-based television program. Episodes are available for viewing on KSCI-18 Television in Los Angeles, San Diego and San Bernardino and KTSF-26 in the San Francisco Bay Area on Sundays at 4:30 PM. Episodes are also available for viewing on www.immigrationexperts.tv .