When Can an Immigrant Receive a Provisional Unlawful Presence Waiver?

 Posted on April 19, 2022 in Immigration

There are many different situations where immigrants may need to address issues related to inadmissibility. Immigration officials may determine that a person is inadmissible to the United States due to issues such as criminal convictions or violations of the laws related to immigration. In some cases, immigrants may be able to apply for waivers of inadmissibility allowing them to enter or remain in the U.S. For those who are inadmissible because they have remained in the United States without authorization, provisional unlawful presence waivers may allow them to gain legal immigration status.

Qualifying for Provisional Unlawful Presence Waivers

Unlawful presence in the United States refers to any time spent in the country without legal authorization, such as remaining in the country after the expiration of a temporary visa or entering the country illegally and living in the U.S. without documentation. Unlawful presence can lead to restrictions on a person’s ability to re-enter the United States in the future. A person who stays in the U.S. without authorization for between 180 days and one year will be inadmissible for three years after the date they departed the country. For those with unlawful presence of more than one year, a 10-year bar to admissibility will apply.

Immigrants who are currently in the United States unlawfully may be concerned that if they leave the country, they will be restricted from proceeding with the legal immigration process. However, immigrants may qualify for provisional unlawful presence waivers that will allow them to leave the U.S. and pursue an immigrant visa through consular processing. To be eligible for a provisional unlawful presence waiver, a person will need to meet the following requirements:

• They must be physically present within the United States.
• They must be at least 17 years old.
• They must have a pending immigrant visa application. These may include applications for family-based visas or employment-based visas, as well as visas through the Diversity Visa program.
• They must demonstrate that their inadmissibility to the United States will result in extreme hardship family member who is a U.S. citizen or has a valid Green Card. Qualifying family members will include a person’s spouse or one or both parents. This hardship must generally be more significant than the consequences that family members may face if they were required to relocate to another country. Extreme hardship may involve serious emotional trauma due to the separation of family members, financial problems caused by the loss of employment, an inability to pursue educational opportunities, or a loss of access to medical care that is necessary for a person’s health and well-being.
• They must not be in the midst of removal proceedings. A final order of deportation will generally disqualify a person from receiving a provisional unlawful presence waiver unless they have already applied for permission to reapply for admission to the United States after deportation and received approval from U.S. Citizenship and Immigration Services.

Contact Our Orlando Waivers of Inadmissibility Attorney

Immigrants who are undocumented or who have remained in the U.S. unlawfully may be unsure about their options for addressing immigration issues, avoiding deportation, or gaining legal immigration status. Vasquez Law Firm, PLLC can help you determine the best ways to proceed in these situations, and we can advise you on whether you may qualify for a provisional unlawful presence waiver or other waivers of inadmissibility. To get legal help with immigration issues, schedule a free consultation with an Orange County deportation defense lawyer by calling 407-955-5000.

Sources:

https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers

https://www.ilrc.org/sites/default/files/resources/understanding_unlawful_presence_march_2019.pdf