Phoenix Immigration Waiver Attorneys
Unlawful Presence & Waivers
Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a “period of stay authorized by the Secretary.” You may be barred from reentering the United States for:
- 3 years - if you depart the United States after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay and before the commencement of removal proceedings on or after April 1, 1997;
- 10 years - if you depart the United States after having accrued 1 year or more of unlawful presence during a single stay on or after April 1, 1997; or
- Permanently - if you re-enter (or try to re-enter) the United States without being admitted or paroled after having accrued more than 1 year of unlawful presence in the aggregate during one or more stays in the United States.
Whether an unlawful presence bar applies to you or not depends on the immigration benefit you are seeking. Depending on the immigration benefit you are seeking, the law may EXEMPT you from the bar.
If one or more of the unlawful presence bars applies to you, you generally cannot obtain a visa or an immigration benefit such as adjustment of status (Green Card) without first obtaining a waiver.
There are several types of waivers available for you:
- Form I-192, Application for Advance Permission to Enter as a Nonimmigrant
- Form I-601, Application for Waiver of Grounds of Inadmissibility
- Form I-601A, Application for Provisional Unlawful Presence Waiver
- Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal
Allows inadmissible non-immigrant aliens to apply for advance permission to temporarily enter the United States.
You can file this Waiver if you are a nonimmigrant who is inadmissible in one of the following categories:
- Inadmissible nonimmigrant already in possession of appropriate documents;
- Applicant for T nonimmigrant status (Form I-914); or
- Petitioner for U nonimmigrant status (Form I-918).
If you are seeking T non immigrant status or U nonimmigrant status, and you are only inadmissible under INA section 212(a)(4) (public charge), you do NOT need to file this Waiver because you are EXEMPT from this ground of inadmissibility.
If you are inadmissible to the United States and are seeking an immigrant visa, adjustment of status, certain nonimmigrant statuses or certain other immigration benefits, you must file this form to seek a waiver of certain grounds of inadmissibility.
If you are an immigrant and you are outside the United States, who have had a visa interview with a consular officer and during the interview you were found inadmissible; or you are an applicant for adjustment of status - you may file this 601 Waiver to obtain relief from the following grounds:
- Health-related grounds of inadmissibility;
- Certain criminal grounds of inadmissibility;
- Immigration fraud and misrepresentation;
- Immigrant membership in totalitarian party;
- Alien smuggler;
- Being subject to civil penalty or
- The 3-year or 10-year bar due to previous unlawful presence in the United States
Certain immigrants who are relatives of U.S. citizens (USC) or Lawful Permanent Residents (LPRs) may use this Provisional Waiver of the unlawful presence grounds of inadmissibility before departing the United States to appear at a U.S. Embassy or Consulate for an immigrant visa interview. Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. On August 29, 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.
You may file this application to seek a provisional unlawful presence waiver if you:
- Are physically present in the United States;
- Are at least 17 years of age at the time of filing;
- Have an immigrant visa case pending with Department of State (DOS)
Believe you are or will be inadmissible only for a period of unlawful presence
in the United States that was:
- More than 180 days, but less than 1 year, during a single stay; or
- One year or more during a single stay
Application for Permission to Reapply for Admission into the United States After Deportation
You will need to file Form I-212 if you are inadmissible under INA section 212(a)(9)(A) because:
- Were actually removed from the United States; or
- Departed the United States on your own after being issued an order of removal; and
You seek admission or adjustment of status:
- At any time, if you have been convicted of an aggravated felony; or
Before you have been outside the United States for a continuous period of:
- 5 years, if you were removed as an arriving alien, but only once;
- 10 years, if you were removed other than as an arriving alien, but only once; or
- 20 years, if you were removed more than once, whether as an arriving alien or not.
The Phoenix immigration waiver attorneys at Maria Jones Law Firm can answer your questions about your waiver process and will assist you with all necessary paperwork. Call us today at (602) 603-4032.
FAQ About Immigration Waivers
What immigration waiver is right for me?
There is a handful of different waivers to dismiss your unlawful presence in the United States. Each one is specific to a certain situation, so the waiver that is right for you may not be right for the next person. For example, a Waiver I-601 is usable by undocumented immigrants who are seeking relief from undue hardship, like human trafficking. Due to the specificity of this waiver requirement, you may be ineligible for it. But you might become eligible for a different type due to your own circumstances. An immigration attorney’s help will let you narrow down your options and pick the correct immigration waiver.
How does immigration reform change waiver of inadmissibility filings?
In October 2019, “foreign national” was replaced with “alien” throughout multiple United States Citizenship and Immigration Services (USCIS) codes and policies. It was done so to better fit the definition of parties eligible for immigration statuses and waivers, which is “any person not a citizen or national of the United States.” This update may make it more difficult for you to receive eligibility for a waiver, depending on your home country and why you are seeking to enter the U.S.
How to obtain an extreme hardship immigration waiver?
Waiver I-601 is meant to protect an immigrant and their family from “extreme hardship” in their home country. The idea of “extreme hardship” has been interpreted in a number of different ways throughout the years, with different judges and policymakers weighing in on the matter. Due to the potentially subjective nature of an extreme hardship immigration waiver process, you should prepare your argument with the help of an immigration attorney, who can take specifics of your case and determine how best to use them to your advantage.
How to write an immigration waiver letter?
To obtain an immigration waiver, you must first write an immigration waiver letter to the appropriate USCIS office that argues for your eligibility. Writing this letter is quite technical, as the USCIS expects to see certain descriptors and language used to prove eligibility. Supporting documents may also be necessary to file with your letter, further showing that you have experienced extreme hardship. You will also be required to pay filing and waiver fees. All in all, the process can take up to 6 months or more to write a letter, file it, and hear a response. Once again, it is best to proceed with the guidance of a professional immigration lawyer.
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