Waivers for Unlawful Presence

  • June 2, 2022

Filing an I-601 or I-601A waiver is often the only remedy available to a client in violation of INA §212(a)(9)(B) for unlawful presence in the United States.

Throughout our practise, we have encountered numerous individuals who are (or will become) subject to the three– and 10-year bars for unlawful presence, as they are the most common ground of inadmissibility. Thus we thought to share some technical aspects of Waivers based on grounds of inadmissibility and its consequences. This article will provide you with in-depth knowledge of the waivers and what wrong you had done or may do. However, you may not be able to apply for a waiver on your own because it is not suggested. Waivers are complex and a lot of evaluation is needed to come up with an exact waiver option. So let’s start and have the required awareness about inadmissibility and waivers available for it.

Section 212(a)(9)(B) of the INA defines unlawful presence for a foreign national as any time present in the United States after the expiration of an authorized period of stay or presence without being admitted or paroled. The section also declares that anyone having accrued more than 180 days but less than one year, who voluntarily departs the United States, will be inadmissible for three years. Persons having accrued more than one year of unlawful presence, who voluntarily leave, will be unacceptable for ten years.

There are exceptions for the accrual of unlawful presence, most notably for minors under the age of 18, and these are spelt out in INA §212(a)(9)(B)(iii). Unfortunately, because these exceptions are listed in subsection (B), they are only applicable in this context. Those exempted from the accrual of unlawful presence under INA §212(a)(9)(B) still accrue unlawful presence for the purpose of INA §212(a)(9)(C)(i)(I), often referred to as the permanent bar because there is no hardship waiver available for this ground of inadmissibility.

INA §212(a)(9)(B)(v) provides that a foreign national can seek a waiver of this particular ground of inadmissibility. To do so, the foreign national must have a U.S. citizen (USC) or lawful permanent resident (LPR) spouse or parent, called the qualifying relative (QR), and they must show that refusal of admission would result in extreme hardship to the QR. Traditionally, this was accomplished by the filing of an I-601 waiver application after the immigrant visa interview at the U.S. embassy or consulate abroad, and while the applicant was outside the United States or in certain circumstances with an adjustment of status application, where the three– and 10-year bars had been triggered by a departure, and where the applicant returned with a subsequent admission.

On March 4, 2013, U.S. Citizenship and Immigration Services (USCIS) began processing “provisional waivers” for the unlawful presence of inadmissibility grounds found in INA §212(a)(9)(B)(i). The I-601A provisional waiver application is the form used for this stateside waiver, and the basis upon which it may be granted is the same as the I-601 waiver. The provisional waiver only covers the unlawful presence ground of inadmissibility found in INA §212(a)(9)(B)(i); it cannot be used in any other ground of inadmissibility applies. The rule was designed to reduce the amount of time a USC spouse or parent would be separated from the applicant while navigating the immigrant visa process.

On July 29, 2016, the U.S. Department of Homeland Security (DHS) expanded the previously narrow provisional waiver process to include all immigrants seeking a provisional waiver, regardless of whether they were the immediate relative of a U.S. citizen (i.e., employment-based, diversity lottery, family-based immigrants, etc.) It further provided that immigrants could apply for a provisional waiver regardless of whether their qualifying relative(s) was a U.S. citizen or lawful permanent resident. The rule also allowed for immigrants to apply for a provisional waiver even if USCIS had a reason to believe there may be grounds of inadmissibility other than INA §212(a)(9)(B)(i)(I) and (II). It eliminated temporal limitations restricting eligibility based on visa interview scheduling by the Department of State. In addition, it allowed for immigrants with final orders of removal, exclusion or deportation to apply if they had already applied and been approved for an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212.

Attorney’s Comment:  While USCIS may still approve a waiver, even if it has reason to believe there are other applicable grounds of inadmissibility, the waiver is only available for unlawful presence. The Department of State may still deny a visa based on other grounds of inadmissibility. If that happens, the provisional waiver is cancelled, and the applicant must apply for a new waiver (Form I-601) if available, based on the unlawful presence bar and the new ground of inadmissibility.

Basic Application Process

The waiver of the three– and 10-year bars is requested on Form I-601 or I-601A, depending on when and how the applicant is seeking a waiver: If the Applicant is in the United States, eligible for and seeking an adjustment of status, the applicant will submit Form I-601 and additional evidence of hardship. This waiver may be submitted with the I-485 at the time of the interview or once a determination of unlawful presence has been made (usually at the interview).

Consult an Attorney:

During the initial consultation, you will be asked to provide information related to your Travel, Stay in the US, Filled Visa Forms, and Court cases if any. The attorney will thoroughly examine your prior entries, Filled Visa Forms, Documents submitted and periods of stay in the United States. This will allow you to determine whether the individual is facing a three– or 10-year bar under INA §212(a) (9) (B) or a “permanent” bar under INA §212(a) (9) (C).

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