If a person is unlawfully residing in the United States, they may be barred from immigration benefits that exist to help immigrants work and live in the United States legally and permanently. However, the United States Citizenship and Immigration Services (USCIS) allows these individuals to apply for a waiver of inadmissibility, as long as they meet certain conditions.
This waiver is a provisional waiver, called an I-601A Provisional Unlawful Presence Waiver. A Provisional Waiver Lawyer NYC can help a person who is not currently eligible to Adjust Status because of unlawful entry or unlawful presence to obtain a provisional waiver prior to any travel outside of the United States, as well as obtain their Immigrant Visa at a United States Consulate.
The Three-and Ten-Year Time Bar Consequence of Unlawful Presence in the United States
According to this rule, if someone departs the United States after they had been unlawfully present for more than 180 days, but less than one year, they are then barred from entering the United States for three full years. Additionally, if someone departs the United States after having been unlawfully present here for a period of time over 360 days, they are then barred from entering the country for ten full years.
Fortunately, there is a way to potentially avoid these consequences. If your employer or relative filed an Immigrant Visa petition on your behalf, and you must go to the United States Consulate in your former country to get the Immigrant Visa and then return to the United States, you will be able to do so without triggering the three or ten-year time bar consequence—as long as you have an approved Provisional Waiver.
An experienced Provisional Waiver Lawyer NYC can help you gather the necessary documentation and evidence to support your application for a provisional waiver. Contact the Feiner & Lavy Law Firm today for a free consultation. You can reach our office at 212-571-9200.
What Can a Provisional Waiver Lawyer NYC Do for Me?
The provisional unlawful presence waiver process gives people who are statutorily eligible for an immigrant visa the ability to apply for the waiver in the United States before they leave for their immigrant visa interview. Those that may be statutorily eligible for an immigrant visa include immediate relatives, employment-based immigrants, family-sponsored immigrants, and Diversity Visa selectees.
The major benefit to applying for a provisional waiver is that qualifying immigrants can actually request the waiver while they are still residing within the United States. This is why the waiver is sometimes referred to as the “stateside” waiver. This process was designed to shorten the length of time that United States citizens and permanent lawful resident family members are separated from their relatives as they obtain immigrant visas to become lawful residents of the United States.
The Form I-601 process is not affected by the expansion of the provisional unlawful presence waiver. This means that people who do not qualify for a provisional unlawful presence waiver or do not wish to get one are still able to file for a Form I-601 Application for Waiver of Grounds of Inadmissibility. This can be filed after a DOS consular officer finds that they are not admissible to the United States.
What Will I Need in Order to Get a Provisional Waiver?
To successfully obtain a provisional waiver, you will need to meet several conditions. You must
Currently, be physically present in the United States
Have a spouse or a parent who is a U.S. citizen or Lawful Permanent Resident
Be at least 17 years old
Be the beneficiary of an approved immigrant visa petition, such as I-130, I-140 or I-360.
Be willing to temporarily leave the U.S. to request an immigrant visa from the U.S. Consulate in your home country
Demonstrate that your qualifying family member will suffer an extreme hardship if your waiver is denied
Not currently be involved in deportation or removal proceedings
Have no grounds of inadmissibility (such as misrepresentation, fraud, or criminal convictions that involve moral turpitude)
Not have ever received an order of removal or accepted voluntary departure without departing the U.S. as required
Not be currently scheduled for an immigrant visa interview with a U.S. Consulate abroad
Not have previously submitted an application for adjustment of status.
Approval or Denial of Your I-601A Waiver
There are guidelines that USCIS uses to decide whether to approve or deny your provisional waiver. These guidelines are always subject to change, so it is helpful to speak with a Provisional Waiver Lawyer NYC before moving forward.
To help boost your chances of approval, you should know if your qualifying relative does meet extreme hardship requirements. You should also make sure that you are able to collect the supporting documents and evidence required to support your qualifying relative’s hardship.
In addition, you will need to provide proof that you are the beneficiary of an approved immigrant visa petition that classifies you as an immediate relative of a United States citizen. It is also important that you provide complete responses to any questions and all fields in the request application. Finally, be ready to provide complete information regarding birth dates, names, and receipt numbers for the approved immediate relative petitions.
Unfortunately, applications to the United States Citizenship and Immigration Services (USCIS) for provisional waivers are often denied. As the provisional waiver is a discretionary form of relief, the USCIS has a lot of leeway in determining whether an application should be approved or denied.
How Long Does It Take to Get Approval for a Provisional Waiver?
There are a few different factors that may impact the length of time it takes to process and approve your provisional waiver. On average, it can take anywhere from four to six months to get the approval for the waiver. However, this process may be delayed if the necessary documents are not submitted promptly. It can also take more or less time to process, depending on how busy the office is.
Permanent Bar Issues
It is important to remember that even if you meet all of the requirements to obtain a provisional waiver for unlawful presence, you could still be disqualified if you have a permanent bar and are subject to Section 212(a)(9)(C) of the Immigration and Nationality Act. This happens in situations where someone was ordered to be deported or removed from the United States and that person re-entered the country illegally.
It can also happen if someone had been unlawfully present in the United States for an aggregate period of more than one year and then re-entered the country illegally. While this is called a permanent bar, there is still an option to request re-entry to the United States, as long as you remained outside of the country for at least ten years.
What Happens If My Application for a Provisional Waiver is Denied?
Unfortunately, there is no appeals process if your provisional waiver request is denied. Since there is no way to appeal the process and request another review for your application, it is crucial that everything is done properly, is submitted timely, and is filled out accurately.
For this reason, it is essential to hire an experienced Provisional Waiver Lawyer NYC to help you submit your request for a provisional waiver. An attorney will know the law and be able to apply it probably in your case to give you the best chance at approval for your provisional waiver.
Even though you cannot appeal a rejected provisional waiver application, if your immigrant visa application is still pending, then you do have the ability to submit a second provisional waiver application if there are any new developments in your case. However, submitting a second application will also require a second set of fees.
It can be beneficial to submit a second provisional waiver application, though, if you are able to demonstrate new information that would support your request. You may also be able to show that a denial of your provisional waiver would constitute an extreme hardship for your qualifying United States relative or relatives, which can make a difference in whether your application is approved or denied.
Next Steps After the Denial of a Provisional Waiver
If USCIS does deny your provisional waiver application, you may opt to abandon your immigrant visa application and decide not to pursue this any further. Of course, there are certain risks with taking this approach.
For example, if you are unlawfully living in the United States, there is always a possibility that you may be apprehended, and it may come to the attention of the immigration authorities that you are living here unlawfully. You may then receive a Notice to Appear in Immigration Court. Other legal options may be available to you at that time, like applying for the cancelation of removal.
There are also some other legal options you may have after receiving a denial of your provisional waiver application. You may be eligible for another type of immigration relief, such as Temporary Protected Status (TPS), or asylum. To learn more about these legal options and whether or not they may be applicable in your case, you should seek the advice of a Provisional Waiver Lawyer NYC who is practicing in the area of US immigration law.
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