New Guidance on Waiving Unlawful Presence

Reuben S. Seguritan

January 18, 2017

Everyone should be in the United States (US) legally. Unlawful presence causes a lot of problems for an alien applying for a green card. If he is required to go abroad to process his visa, he may not be able to return for years and be separated from his family.

Unlawful presence generally starts accruing when a person overstays his authorized stay in the US as indicated on the date stamped on the I-94 card. The I-94 is the arrival/departure record issued to the individual at the port of entry based on the underlying non-immigrant visa.

If a person is unlawfully present for more than 180 days but less than one year, he would be barred from re-entering the US for three (3) years. If the unlawful presence is for one year or more, he would be barred for ten (10) years. If a person is unlawfully present for an aggregate period of more than one (1) year and he re-enters or attempts to re-enter without being admitted, he would be barred permanently.

Both the 3-year and 10-year bars to inadmissibility may be waived. A person who is permanently barred may also seek consent to reapply for admission after having been outside the U.S. for at least ten years.

A person can apply for the waiver of the 3-year or 10-year bar, if such person is the spouse or child of a US citizen or the spouse or child of a legal permanent resident (LPR), and if he can prove that the bar would result in “extreme hardship” to the US citizen or LPR spouse or parent.

Although what constitutes “extreme hardship” is not explicitly defined in any of the laws or rules, new guidance was released in October 2016 and effective on December 5, 2016. This new guidance provided a list of factors that the government would consider in making a determination of extreme hardship. The factors pertain to whether the extreme hardship would occur if the US citizen or LPR remains in the US while the applicant remains outside of the US or extreme hardship would occur if the US citizen or LPR leaves the US to reside with the applicant. Social, cultural, economic, health and other conditions may be considered in determining extreme hardship.

There is a new process called provisional waiver that enables those who are subject to the bar to apply for “provisional” approval of an unlawful presence waiver from within the US and then travel abroad for visa processing. Provided there are no other immigration violations or issues, an applicant granted a provisional waiver could then travel to complete the process and receive his immigrant visa. This significantly reduces the time that family members have to remain outside the US.

The government expanded the eligibility for a provisional waiver in 2016 to include all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility such as beneficiaries of employment-based and family-based petitions, diversity visa lottery and any other immigrant classification. Note that the waiver is provisional in that it would not take effect until after the applicant departs the US, appears at his visa interview and is found by the consular officer as otherwise admissible to the US. But the time that the individual would have to spend abroad would be significantly less compared to that under the old procedure.