Waivers Are Now Available to Cure Unlawful Presence and Obtain a Green Card

I-601A– Waiver of Unlawful Presence

Many immigrants who wish to apply for a green card, but who came to the country without inspection (or a visa), will be found inadmissible due to their unlawful presence (that is, entering the U.S. without inspection).  The provisional unlawful presence waiver process, however, allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, if the refusal of admission of the immigrant would result in extreme hardship to their U.S. citizen relative.

If you believe you are, or will be, ineligible for a green card becauseof unlawful presence in the United States for more than 180 days, but less than 1 year, during a single stay or unlawful presence in the United States for 1 year or more during a single stay, you may be eligible for the waiver.The waiver, if granted, operates to “cure” the ground of inadmissibility of illegal entry and unlawful presence, such that the applicant for adjustment of status with a waiver would be deemed to have been legally admitted and thus eligible to seek a green card.

Who can apply?

In order to be granted the waiver of unlawful presence, you must meet all the following eligibility requirements:

-You are physically present in the United States;

-You are at least 17 years of age at the time of filing;

-You are the beneficiary of an approved I-130 family based petition establishing that you are an immediate relative (spouse, child, or parent) of a U.S. citizen;

–You must establishthat the refusal of your admission would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion.

There are, however, other factors that may make you ineligible for the waiver. These include:Immigrants who have certain criminal convictions; immigrants who have committed fraud, for example by entering the U.S. with a fake passport through an airport; immigrants with final deportation or removal orders from an Immigration Court; immigrants who have already been scheduled for an interview at their consulate based on an approved family petition.

How We Can Help

A waiver of inadmissibility based on unlawful entry and presence is available if refusal of admission of the immigrant would result in extreme hardship to his citizen spouse. “Extreme hardship” is a legal term, howeverit does not have a single, definable meaning.Rather, establishing extreme hardship depends on the facts and circumstances of each case. Extreme hardship, however, means more than the normal hardship experienced by being separated from your family.

In making a determination of extreme hardship, the government looks at the following factors, as they relate to the U.S. citizen: The presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

As lawyers, we can discuss with you your particular circumstances, examine the factors that may make you eligible or ineligible for the waiver, and analyze the facts of your case to establish extreme hardship. For example, if you think you might not be eligible for the waiver because of a criminal conviction, we can discuss with you whether the particular offense disqualifies you. We will work diligently to maximize your chances of success by employing legal expertise, expert witnesses such as psychologists, and thoroughly preparing your application to make sure it is persuasive and compelling.

If you have questions about the I-601A Waiver of Unlawful Presence, or believe you may be eligible or ineligible for the waiver and would like to apply for a green card, please contact us at our San Francisco office: 2601 Mission St. Suite 210, San Francisco, Ca; telephone number (415) 643 4342; email [email protected]