Professional Waivers for Unlawful Presence

Here is a very common situation: An immigrant illegally enters the U.S. by crossing the U.S. border without a visa. Then, the immigrant marries an American citizen. Generally in that scenario, U.S. immigration law prohibits the immigrant from obtaining legal immigration status while remaining in the U.S. Instead, the immigrant must leave the U.S., and apply for a visa at a U.S. embassy abroad. But then there's a big obstacle to overcome: Under U.S. immigration law, when an immigrant has lived in the U.S. unlawfully for one year or more, and then the immigrant leaves the U.S. in order to obtain a valid visa at a U.S. embassy abroad, that departure from the U.S. triggers the "10-year bar" and, thus, the immigrant is legally barred from returning to the U.S. for 10 years.

It is possible for an immigrant to obtain a waiver of the 10-year bar. In the past, the waiver request was made during immigrant visa interview at a U.S. embassy abroad, and the immigrant was required to sit outside the U.S. and wait for a decision on his waiver application. That waiting period could last several months or more — possibly even a year or more. And if the waiver application was denied, then the immigrant was forced to wait outside of the U.S. for the full 10-year bar period. Few immigrants were willing to be separated from their families this long.

Fortunately, the law changed on March 4, 2013: Now, immigrant visa applicants who have U.S. citizen spouses and parents can apply for provisional unlawful presence waivers while still in the U.S., BEFORE they leave the U.S. for their immigrant visa interview at a U.S. embassy abroad. The new process significantly shortens the time U.S. citizens are separated from their families when they travel abroad for their immigrant visa interview.

What Is Needed to Get a Waiver?

In order to qualify for a provisional waiver, the applicant must show that:

  • He has a "qualifying relative" (either a U.S. citizen spouse or parent)
  • His qualifying relative (either a U.S. citizen spouse or parent) would suffer "extreme hardship" if the immigrant was denied the visa
  • The immigrant deserves the waiver

What Does "Extreme Hardship" Mean?

Extreme hardship is an undefined legal term of art. Generally speaking, one must prove that the immigrant's U.S. citizen relatives would suffer greater hardship than what would normally be expected when an individual is separated from his family. There is no magic formula for success. Factors that are relevant include serious health issues that require treatment within the U.S., strong ties to family members in the U.S. and a lack of family ties in the home country, sizeable financial issues, psychological and emotional issues, conditions in the home country, and so on. These are only a few examples; however, every case has its own special issues. There is not one standard formula for a successful case.

Do I Need a Lawyer to File a Provisional Waiver Application?

Preparation of a successful waiver application requires a lot of time and effort to understand, organize and present the client's legal issues, past experience and present circumstances. You must gather a large quantity of documents to prove the extreme hardship that your U.S. citizen relatives will suffer if you are forced to return to your home country. For these reasons, it is best to hire an attorney to prepare your provisional waiver application.

Contact Us

If you are looking for an immigration lawyer in Chicago to help you with a provisional waiver application or to determine if you are eligible to apply, contact our office at (312) 445-9127 for a free phone consultation.