Provisional Unlawful Presence Waivers – I-601A

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.

Foreign nationals who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. Typically, these foreign nationals cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.

The provisional unlawful presence waiver process allows those individuals who are statutorily eligible for an immigrant visa (immediate relatives, family-sponsored or employment-based immigrants as well as Diversity Visa selectees);  who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.

This new process was developed to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives are obtaining immigrant visas to become lawful permanent residents of the United States.

An application for the waiver is very technical and complex. Do not try to do this one yourself. It is important to find a qualified and skilled immigration attorney to help you. Mr. Matemu has done these for many years.

Waivers of Inadmissibility Form I-601

A finding or likelihood of being found inadmissible to the U.S. may not be the end of your hopes for a U.S. visa or green card. Many grounds of inadmissibility allow applicants to apply for a waiver; in other words, “forgiveness” of the ground by the U.S. government. Different grounds of inadmissibility have different waiver requirements, however, so make sure you meet the basic criteria to submit an application. The application itself will need to be carefully prepared and documented.

If the U.S. immigration authorities find you to be “inadmissible,” you can be refused a U.S. green card.

Approval of an I-601 waiver application is anything but automatic. Your chances are dramatically improved if you have the right attorney working for you.

Criminal Waivers I-601

Even if you’re married to a US citizen, you may not be able to obtain your green card if you have a crime in your past. You may be subject to a bar because of a criminal conviction or criminal conduct. If you have a criminal history, be very careful applying for immigration benefits, including a green card.

Crimes of Moral Turpitude can be the basis for inadmissibility. Even a misdemeanor can be considered a crime of moral turpitude. CMTs usually refer to theft crimes but can cover other types of crimes as well that courts have typically held to be lacking moral character including assault with intent to rob, statutory rape, aggravated DUI (driving under the influence), stalking, arson, blackmail, robbery, etc.

You may be eligible for a WAIVER, to allow you to become a green card holder despite the criminal act in certain circumstances. This type of waiver is referred to as a 212(h) waiver.

To be successful, the immigrant must show for a 212(h) waiver that either

  1. The criminal activities the immigrant was convicted of happened more than 15 years before their application for adjustment of status (the green card process in the US) and approving the case would not be contrary to national welfare, safety or security, and that the person has been rehabilitated; OR
  2. The immigrant is the spouse, parent, son or daughter of a US citizen or permanent resident, that qualifying relative would suffer extreme hardship if the immigrant’s admission into the US was denied (i.e., the waiver case was denied); OR
  3. If waiving prostitution ground, prostitution must be sole basis of inadmissability, the immigrant has been rehabilitated, and approving the case would not be contrary to national welfare, safety or security; OR be a VAWA (abused spouse) self-petitioner

And . . .  the immigrant must prove that he or she “deserves” that the waiver be granted – because the waiver is discretionary. How is the person have strong moral character despite their criminal acts?   In removal proceedings, just because an offense is waivable doesn’t mean that the immigration judge will make a favorable discretionary grant, especially if the offense involves a “violent or dangerous” crime unless you can prove that granting would harm national security interests or your USC spouse, parent, or child would suffer exceptional and extremely unusual hardship, a very difficult standard to meet.

As you can see, the filing of a successful waiver application requires great skill and experience. It would be desirable to have it done by a skilled and experienced attorney.

Waiver I-212: Application for permission to reapply for admission into the U.S. after deportation or removal

The first thing many who have been deported from the United States asks is “when may I return.”  In most cases , the alien may not return to the United States after s/he has been ordered removed for a period of 10 years, but like many laws  there are “exceptions.” The Immigration and Nationality Act provides that an alien may return to the United States, notwithstanding the bar on re-entry, if the Attorney general has consented to the alien’s reapplying for admission.  The application for re-entry is filed either in the United States or at the oversees consulate who has the authority to grant the “I-212 waiver.”

This I-212 “waiver” is for an inadmissible immigrant or non-immigrant  that is seeking permission to reapply for admission into the United States (also known as “consent to reapply”) after they have been excluded, deported, or removed from the United States or had been unlawfully present in the United States for an aggregate period of more than 1 year, and subsequently entered or attempted to reenter the United States without being admitted.

Aliens who have been deported from the United States are typically barred for a period of time. The period during which the deportee is barred can be either 5, 10 or 20 years depending on the circumstances of and reasons for the deportation. See below. In order to be readmitted during the period s/he is barred, a I-212 Waiver for Reapplication for Admission must be filed.

In many cases, the I-212 Waiver is filed along with  an I-601 waiver application (for those that remained in the United States illegally for a period of greater than six months). Or for example, someone who has been ordered removed from the United States after an Immigration Judge has made a finding of fraud under INA § 212(a)(6)(C)(i), which imposes a  bar to entering the U.S., will require an I-212 waiver application  and either an I-601 waiver application ( for an immigrant visa) or an I-192 waiver application (for a nonimmigrant visa). The I-212 application, once  granted, would waive the prior removal. The I-601 or I-192 application, if approved, would waive the fraud grounds of inadmissibility.

Depending on the case, this application must be made either at the same consulate which will be issuing the visa or at the U.S. Citizenship and Immigration Services office having jurisdiction over the place of the original deportation.

Form I-212 is therefore submitted together with the appropriate supporting documentation and filing fee.

Individuals who may benefit from this waiver include:

  • Aliens previously removed subject to an order of removal entered by an Immigration Judge;
  • Aliens who fail to timely depart under an order of voluntary departure issued by an Immigration Judge, whose voluntary departure is converted to an order of removal; and
  • Aliens who have been subject to an order of expedited removal issued by the border patrol

Understand that if a person leaves on time as ordered by the immigration judge, pursuant to an order of voluntary departure, s/he does not need to apply for permission to reapply for admission.

An alien who receives an I-212 waiver (permission to reapply) and re-enters legally cannot later be deported/removed again for the same acts that were the basis of the individual’s previous deportation/removal.

Call us today to for any questions you may have regarding the waiver you need.