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The Reality of USCIS Provisional Unlawful Presence Waiver.

  • By: Immigration Attorney Osas Iyamu
  • Published: August 14, 2012
Provisional Unlawful Presence Waiver

Unlawful presence occurs when a non-U.S. citizen remains in the United States beyond the period of time authorized by the U.S. Immigration Agencies. The term also refers to persons present in the United States without being properly admitted or paroled.

Penalty For Unlawful Presence- The Three & Ten Years Bar

  1. Any non-U.S. citizen who was or is unlawfully present in the United States for a period of more than 180 days but less than one year, and voluntarily departs from the United States, before the commencement of removal or deportation proceedings, is barred from admission into the U.S for three years from the date of such a departure.
  2. Any non-U.S. citizen who was or is unlawfully present in the United States for one year or more, and who either voluntarily departs or is removed from the U.S. is barred from admission into the U.S. for 10 years from the date of such a departure or removal.

Note: A non U.S. Citizen begins to accrue unlawful presence in the U.S. after the age of eighteen.

The three and ten-year bars are triggered by departure from the United States, after accrual of unlawful presence. If a non-U.S. citizen accumulates the required period of unlawful presence but does not subsequently depart from the United States, the three or ten-year bar does and will not apply.

Many non-U.S. citizens in the United States find themselves ineligible for a green card through adjustment of status or any other immigration benefit because they have accrued unlawful presence in the U.S. In some cases, the only option open to them is to go to the American Consulate or Embassy in their home country to complete the immigration process.
Upon exiting or departing from the U.S., the unlawful presence bar is triggered and kicks into effect. This prevents the approval of their application at the American Consulate or Embassy because it is a ground upon which an immigration application will be denied. Thus resulting in such a person being required to remain outside the U.S. for either three or ten years depending on which bar is applicable.

Overcoming The Three & Ten Years Unlawful Presence Bar Penalty

The only means to overcome an unlawful presence bar is by filing a hardship waiver at the American Embassy or Consulate based on extreme hardship to a spouse or parent who is a U.S. citizen or lawful permanent resident. Upon approval of such a hardship waiver, the three or ten-year bar is forgiven, and the immigration application process can continue, save any other disqualifying grounds.

However, these waiver applications take months, sometimes even years to adjudicate, resulting in a lengthy waiting period outside the U.S. The applicants remain separated from their families in the U.S. and exposed to harm in their home countries while they wait for the processing of the hardship waiver.

Some applicants, whose form I-130 Petition for Alien Relative has been approved and forwarded to the Embassy in their home country have refused to pursue an immigrant visa abroad, due to the uncertainties of whether or not their waiver application will be approved.

USCIS Proposed Provisional Unlawful Presence Waiver

In March 2012, United States Citizenship & Immigration Services (USCIS) proposed a Provisional  Unlawful Presence Waiver. Wherein Persons determined to be unlawfully present in the U.S. will be allowed to file a hardship waiver in the United States before proceeding abroad for their interview where they know ahead of time they will be subject to the unlawful presence bar. This way, a major part of the waiting will be done in the U.S. rather than outside of the U.S. thus reducing the amount of time family members are separated.

The goal of the provisional unlawful presence waiver process is to reduce the hardship certain U.S. citizens may experience when they are separated from their spouse, children or parents, for extended periods of time.

The proposed provisional waiver process will apply to individuals who can establish and prove extreme hardship to a U.S. citizen spouse or parent. This means extreme hardship to a lawful permanent resident spouse or parent will not qualify an applicant under the proposed rule.
USCIS would determine eligibility for the provisional waiver, and if an application is eligible for approval, approve the provisional waiver before the applicant leaves the United States for their visa interview abroad.

Individuals who receive an approved provisional unlawful presence waiver must leave the United States to attend their visa interview in order for the provisional waiver to take effect and for the individual to be granted a visa.

Benefits That Will Not Transfer From An Approved Provisional Waiver Application

A pending or approved provisional waiver will NOT:

  • Provide interim benefits such as employment authorization or advance parole.
  • Provide lawful Immigration status.
  • Stop the accrual of unlawful presence in the United States.
  • Provide protection from removal or deportation.
  • Eliminate the need to depart from the United States to seek an immigrant visa at the Consulate or Embassy.
  • Guarantee visa issuance or admission to the United States.

USCIS has indicated that in the event of a denial of the provisional unlawful presence waiver, removal or deportation proceeding may result. This means the chance of being referred for removal or deportation is part of the risk to be taken in embracing the benefit of the proposed rule.

USCIS has indicated that the provisional waiver rule is not in effect, and can only take effect after a final rule is published.

Opposition To The Proposed Provisional Unlawful Presence Waiver

Recently, lawmakers have blocked the funds required for the implementation of the proposed rule.

Supporters have argued that the adjudication of such waiver requests can take months or years, placing undue burdens and hardship on families whom are already experiencing a degree of hardship.

Those who oppose have expressed concern that it would encourage relatives of United States citizens to come into the country illegally.

Without the necessary funding for this program, it is doubtful if USCIS will publish a final rule to give effect to the Provisional Waiver of Unlawful Presence.

Osas Iyamu

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(800) 974-6480
(352) 237-2403