Illegal Presence Waiver
Illegal Presence Waiver
Unlawful presence is the period when you are in the United States without being admitted or paroled or when you are not on a “period of stay authorized by the Secretary.” You will be ineligible (unless an exception applies to you):
If you are seeking re-admission within 3 years after leaving the United States after accumulating more than 180 days but less than one year of unlawful presence during a single stay and before removal proceedings begin;
If you seek re-admission within 10 years after you departed or were removed from the United States after accumulating one year or more of unlawful presence during a single stay, regardless of whether you departed before, during, or after removal proceedings, or permanently, if you reenter or attempt to reenter the United States without being admitted or paroled after having accumulated more than one year of total unlawful presence during one or more stays in the United States. You can find these grounds of inadmissibility in section (a)(9)(B)(i)(I) and section (II) of the Immigration and Nationality Act (INA) (3- and 10-year grounds of inadmissibility for unlawful presence) and in INA212(a)(9)(C)(i)(I) (permanent ground of inadmissibility for unlawful presence).
You Are Seeking a Waiver of Inadmissibility Under INA Section 212(a)(9)(B)(v) of the 3-Year or 10-Year Unlawful Presence.
If you are inadmissible because you were previously unlawfully present in the United States either for longer than 180 days, but less than 1 year (resulting in a 3-year bar), or 1 year or more (resulting in a 10-year bar), you may seek a waiver by filing this application (I-601).
With the application (I-601), you must establish that your qualifying U.S. citizen or lawful permanent resident relative (spouse or parent) or K visa petitioner would experience extreme hardship if you were denied admission.
Determining whether you are inadmissible after accruing unlawful presence applies to you can be complicated. If you need legal help or advice on immigration matters, make sure the person helping you is authorized to provide legal advice. You can find information about authorized legal services on our Avoid Scams page.
Because forgiveness is difficult to obtain, the advice of an attorney is essential to optimize the chances of obtaining an authorized forgiveness.
Waiver for unlawful presence for those Present in the United States.
Since March 4, 2013, some immigrant visa applicants who are immediate relatives (spouses, children, and parents of U.S. residents) of U.S. citizens have been able to obtain temporary waivers of unlawful presence before leaving the country for a consular interview.
Foreign nationals who are unable to adjust their status in the United States must fly abroad and apply for an immigrant visa. Before they can return, individuals who have accumulated more than 180 days of unlawful presence in the United States must apply for a waiver of inadmissibility to suspend the application of the unlawful presence time criterion specified in section 212(a)(9)(B) of the Immigration and Nationality Act. These citizens generally cannot apply for a waiver until they have attended their visa interview abroad and the Department of State (DOS) consular officer has concluded that they are inadmissible to the United States.
The provisional unlawful presence waiver method allows immediate relatives who only require a waiver of inadmissibility for unlawful presence to do so in the United States prior to their immigrant visa interview.
This new procedure was designed to reduce the amount of time that U.S. citizens are separated from their immediate family while applying for visas to become lawful permanent residents of the United States.
Immediate relatives who are not seeking a provisional waiver may file Form I-601, Application for Waiver of Grounds of Inadmissibility, once a DOS consular officer determines that they are inadmissible to the United States. The same is true for immediate family members who are not eligible for the provisional unlawful presence waiver.