May 23, 2016

A person who has been present in the U.S. without legal status is generally unable to apply for permanent residency in the U.S. and will have to apply at the U.S. Consulate in their home country.

Once the person departs the U.S. he or she will be barred from returning. If the individual has been in the U.S. for more than six months, but less than a year, the bar is three years. If the person has been unlawfully present for more than one year, the bar is ten years.

Immigration will forgive unlawful presence and waive inadmissibility, if the individual can demonstrate that their U.S. citizen or green card holding spouse or parent will suffer extreme hardship, if the individual is unable to return to the U.S. Unfortunately, most individuals with unlawful presence must apply for the waiver from outside the U.S. It can take Immigration several months and even more than a year to make a decision on the waiver application. If the waiver is denied, the individual will be unable to come back to the U.S. for up to ten years. This causes great hardship to families.

As a result, Immigration now allows certain individuals to apply for the unlawful presence waiver while in the U.S. The waiver will be provisionally approved and will allow the immigrant to depart the U.S. to secure his or her immigrant visa at the U.S. Consulate in their home country without spending months outside the U.S. waiting for the waiver.

The current provisional unlawful presence waiver program only benefits individuals who are beneficiaries of immigrant petitions filed by a U.S. citizen spouse or child. Under the proposed USCIS’ expanded provisional waiver program all persons with an approved immigrant petition and available visa, regardless of visa category, will be eligible to participate in the provisional waiver program. Therefore, an individual who has entered the U.S. without a visa or who has overstayed their visa status and had a visa petition filed on their behalf by a parent, sibling, or employer may be eligible to apply for the provisional unlawful presence waiver in the United States.

USCIS is set to finalize the regulations of the new provisional waiver program sometime in the first half of 2016.

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