At The Law Office of Ronald L. Freeman, Esq in Riverside, California, we know that foreign nationals who are ineligible to change their status in the United States must travel abroad to obtain an immigrant visa. Those who have accumulated more than 180 days of unlawful presence while residing in the United States must obtain a waiver of inadmissibility to resolve what is stipulated under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return.
Usually, these foreign nationals cannot apply for a waiver unless they have previously appeared for their immigrant visa interview abroad, as well as having a Department of State (DOS) consular officer determine that they are inadmissible to the United States.
A provisional unlawful presence waiver allows such individuals who are statutorily eligible to have an immigrant visa (i.e., immediate relatives, family-sponsored or employment-based immigrants, Diversity Visa selectees). Also, they only need to obtain a waiver of inadmissibility for unlawful presence in order to apply for that waiver in the United States before departing for their immigrant visa interview.
This new process was created to shorten the amount of time US citizens and their lawful permanent resident family members are separated from their relatives during opportunities when such relatives need to obtain immigrant visas en route to becoming lawful permanent residents of the US.
History of the Waiver
The Old Rule
Previously, an immigrant who entered the United States without inspection (i.e., walking across the border illegally) could not apply for a green card even if they were married to a United States citizen unless certain conditions are met. There was a law enacted in the 1990s called 245(i), which allowed many illegal immigrants to apply for a green card granted a family or labor petition was filed for them before a particular deadline. This deadline was set to April 30, 2001. As such, the 245(i) law helps only a few immigrants today.
Unfortunately, immigrants who were ineligible to file for their respective green cards had to leave the country and apply for an “extreme hardship waiver” at the Consulate. Very few immigrants willingly left the United States with their families having to apply for a waiver in their home country. This was because it could possibly take more than a year for the application to be fully processed. To make matters more complicated, they could be stuck in the home country for 10 years if the application was denied.
The New Rule
Although an immigrant must still leave the United States, the new rule states that if their extreme hardship waiver is pre-approved, they will only have to leave to attend an interview at the consulate in their home country. Instead of waiting outside the United States for an extended period of time as their applications are processed and facing the risk of not being allowed back for a decade, eligible immigrants can now wait in the United States with their families and spare themselves from not being allowed to return to the United States upon departure. What this means is that the time they will be required to leave the United States could be trimmed down to a couple of weeks or even just a few days.
Anyone applying for a provisional unlawful presence waiver is required to fulfill ALL of the following:
- Be in the United States to file the application and provide biometrics in-person
- Be at least 17 years of age
- Be currently in the process of obtaining an immigrant visa and have an immigrant visa case pending with the Department of State (DOS) because you:
- Are the principal beneficiary of an approved Form I-130 (Petition for Alien Relative), I-140 (Petition for Alien Worker), or I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) who has fully paid the corresponding immigrant visa processing fee; or
- Have been selected by the DOS to take part in the Diversity Visa (DV) Program; or
- Are the:
- Spouse or child of a principal beneficiary of an approved immigrant visa petition who has already paid for the full immigrant visa processing fee to the DOS; or
- The spouse or child of a DV Program selectee
- Be able to comprehensively explain that the refusal of your admission to the United States will cause extreme hardship to your US citizen or Legal Permanent Resident spouse/parent
- Believe you are or will be inadmissible solely because of a period of unlawful presence in the United States that was:
- More than 180 days, but less than one year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
- One year or more during a single stay (INA section 212(a)(9)(B)(i)(II))
- Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e), Form I-601A, and their respective instructions
I-601a Waiver Required Documents (for Unlawful Presence)
To Show Hardship to You and/or Your US Citizen Spouse:
- Notarized affidavit from your spouse
- Notarized affidavit from you
- Photos of your family members and pets
Evidence of Status and Relationship:
- Documentary evidence of your relationship to your spouse (i.e., copy of birth records, marriage certificates, etc.)
- Evidence of your spouse’s immigration status (i.e., copy of naturalization certificates, birth certificates, green cards, and passports)
Evidence of Medical Hardship:
Original copy of your doctor’s letter regarding any medical, emotional, or mental/physical incapacity condition and the treatment involved of your spouse or a close relative whom your spouse/parents have taken care of (NOTE: The doctor’s letter must include the specific nature of the aforementioned condition, ongoing required treatment/s, necessary specialized treatment/s, duration of treatment/s, availability and quality of applicable treatment/s abroad)
Original copy of the medical and hospital records of your spouse or a close relative whom your spouse has taken care of
Evidence of Financial Hardship:
- Letters/Documents showing all financial contributions to your family
- Authentic copies of any proof of your paying capability
- Utility bills
- Child support to any children including those from previous relationships
- Alimony/Pension including those from previous relationships
- Education-related expenses (i.e., private school, tutors, school books and supplies, transportation, etc.)
- Vehicle titles and insurance policy
- Medical, hospital, prescription, and health insurance bills
Proof of Income:
- (For employed individuals) Original letter from your current employer that includes pertinent information about the nature/duration of your employment and your earnings
- Authentic copies of documents regarding ownership of property, business, assets, stocks, etc.
- Original letter of employment for your spouse that includes pertinent information about the nature and duration of employment, working hours, and earnings
Evidence of Emotional Hardship:
- Original copy of your USC spouse’s psychological evaluation, which states how s/he would be affected by your departure
- List of your psychologist’s recommendation/s
Evidence of Education
Authentic copies of your, your spouse’s, and your children’s school records that include:
- Involvement in any special needs program/s
- Involvement in any advanced placement program/s
- Letters/Documents confirming your/their participation in any sports and/or extracurricular programs
Evidence of Hardship if Spouse Relocates to a Foreign Country
Newspaper articles/documents regarding violence, war, natural disasters, living conditions, etc. in the foreign country
Evidence to Show Good Moral Character:
- 2-3 notarized affidavits of witnesses attesting to your good moral character (NOTE: Witnesses must be US Citizens or Legal Permanent Residents)
- Letters/Documents showing your involvement in volunteer projects/programs in your community
- Original recommendation letters from your previous employers and any religious organizations you belong to
- Original police clearance letters from every city you have lived in since the age of 15
- Authentic copy of your driving record (if applicable)
- Authentic copy of your tax records or any other form of evidence, which shows that you have paid taxes for every year you have worked (i.e., IRS Letter 1722)
- Authentic copy of your school records (i.e., college, vocational or English language training programs, etc.)
If you have ever been arrested:
- Original certified disposition for every arrest (if applicable)
- Authentic copy of the certificates of completion from all the rehabilitation programs you participated in (i.e., AA, NA, Life Skills, domestic violence, driving under the influence, controlled substance, etc.)
For more information or to schedule an appointment for a free consultation, contact us!