Aliens who want to file for an Immigrant Visa or apply for an adjustment of status to qualify for a green card must be admissible. One common ground for inadmissibility is unlawful presence in the United States. This occurs when an alien entered the United States without inspection (i.e., crossed the border illegally without a visa) or overstayed their visa (i.e., entered with a visa but stayed in the US longer than they were permitted). According to the Immigration and Nationality Act, an alien is generally deemed to be inadmissible if he or she:
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien’s departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States…
This means that if an alien was unlawfully present and departs the US either voluntarily or involuntarily, he or she cannot re-enter the US for 3 or 10 years. This is referred to as the “statutory bar.” In certain circumstances, this ground of inadmissibility may be forgiven and the alien will not be subject to this 3/10 year bar if he or she applies for an Application for Provisional Unlawful Presence (I-601A) Waiver. The statutory bar (3/10 year bar) is common for persons crossing the border illegally (entering without inspection).
To qualify for a I-601A waiver, the alien must meet the following requirements:
- Be physically present in the United States;
- Be 17 years of age or older at the time of filing;
- Be the Beneficiary of an approved petition where an Immigrant Visa is immediately available;
- Have a qualifying relationship with a US Citizen or Lawful Permanent Resident. Qualifying relationships after the November 20, 2014 Presidential Executive Order include Spouses, sons and daughters of US Citizens; and Spouses, sons, and daughters of Lawful Permanent Residents, regardless of Age;
- Have an immigrant visa case pending with the Department of State (DOS), which is related to the approved Form I-130 or I-360 and for which the alien has already paid the DOS immigrant visa processing fee; and
- Believe he or she is, or will be, inadmissible only for unlawful presence in the United States during a single stay.
While an alien may qualify for the I-601A waiver, he or she must also prove extreme hardship to the US citizen relative spouse or parent or Lawful Permanent Resident spouse or parent. Meaning it must be proven that if the US Citizen/Lawful Permanent Resident spouse/parent must relocate abroad or the alien relocates without the US citizen/Lawful Permanent Resident, the US Citizen/ Lawful Permanent Resident will suffer extreme hardship. Factors that are considered in determining extreme hardship include health/medical considerations, financial and economic reasons, education, personal considerations, family ties, and the country’s condition. Essentially, the more evidence provided to show hardship to the US Citizen/Lawful Permanent Resident, the stronger the case. The November 20, 2014 Executive Order directed USCIS to provide clearer guidelines for defining extreme hardship, with the intent of making the I-601A category more widely available.
If the I-601A waiver is provisionally approved in the US, an Immigrant Visa appointment will be scheduled at the US Consulate of the alien’s home country. The alien will have to travel abroad to attend the interview. While traveling abroad, the 3/10 year bar will be triggered, however, if the visa is issued, the alien will be permitted to return to the US as a permanent resident because of the I-601A waiver.
If the I-601A case is denied by USCIS in the US, the alien will not be placed in removal proceedings provided there are no complicated criminal or national security issues. Generally, the consequences are financial.
An example of the I-601A process is when an alien illegally crosses the border between Mexico and the United States for only 1 time. After a few years of living in the US, the alien marries a US Citizen. The alien has US citizen children, a job, a house and pays taxes. Now the alien wants to qualify for a green card. The US Citizen files a Form I-130, Petition for Alien Relative, which is approved. However, the alien is ineligible to adjust his or her status due to unlawful presence in the US (i.e., crossing the border without inspection). To overcome this ineligibility, the alien applies for I-601A, Application for Provisional Unlawful Presence Waiver. After the I-601A waiver is provisionally approved in the US, the alien goes back to Mexico to attend the Consulate Interview and the Immigrant Visa is granted. Now, the alien may re-enter the US as a permanent resident with his or her green card and live in the US permanently. This is what is commonly referred to as “fixing an illegal alien’s papers.”
Please note that unlawful presence is only one of many grounds for inadmissibility. If you are inadmissible for other grounds, or if you are abroad and deemed ineligible for a visa because you are inadmissible to the US, there may be other Waivers of Inadmissibility available. If you think you are inadmissible, you will need an experienced attorney to review and strategically prepare your case. Contact Cipolla Law Group for a consultation.