STATESIDE WAIVERS FOR THOSE UNLAWFULLY PRESENT IN THE US
Typically, in order to apply for lawful permanent residence (i.e. a green card) from within the United States, you must have entered the United States after being inspected by a U.S. immigration official and have maintained lawful nonimmigrant status. You may adjust your status to lawful permanent resident in the United States even if you failed to maintain lawful nonimmigrant status if you are the spouse, unmarried child under the age of 21, or parent of a United States citizen or are grandfathered under INA § 245(i). Otherwise, you will need to travel overseas to pursue an immigrant visa through consular processing.
However, if you have been unlawfully present in the United States for more than 180 days, you will be barred from re-entering for at least 3 years and in most cases, 10 years. This discouraged many foreign nationals from pursuing lawful status. It also resulted in lengthy periods of separation when foreign nationals did not realize they would be subject to a bar. The provisional unlawful waiver (i.e. Stateside Waiver or I-601A Waiver) was implemented to address these problems. The Stateside Waiver allows you to apply for the unlawful presence waiver while in the United States with your family. The provisional unlawful presence waiver does not change the fact that you will need to attend an immigrant visa interview at a U.S. Embassy or Consulate abroad. However, it can give you peace of mind and minimize the time spent away from your family.
To be eligible for a Stateside Waiver, you must meet ALL of the following criteria:
- Be physically present in the United States at the time you file your application and provide biometrics;
- Be at least 17 years of age or older;
- Be in the process of obtaining your immigrant visa and have an immigrant visa case pending with the U.S. Department of State’s National Visa Center;
- Be able to show your United States citizen or lawful permanent resident spouse or parent would suffer extreme hardship if you were not allowed to re-enter the United States;
- Believe you are only inadmissible because you were unlawfully present in the United States for at least 180 days; and
- Will depart the United States to pursue an immigrant visa.
Extreme hardship refers to the hardships your qualifying U.S. citizen or lawful permanent resident (i.e. green card holder) relative(s) would suffer if you are not ultimately allowed to become a lawful permanent resident. Whether you can show your qualifying relative will suffer extreme hardship will depend upon your family’s circumstances. Extreme hardship includes the hardships your qualifying relative(s) will suffer if forced to leave the United States with you and the hardships your qualifying relative(s) will suffer if he/she/they remain in the United States while you live overseas to fulfill the 3 or 10-year bar. The normal difficulties associated with family separation are not sufficient to establish extreme hardship.
Factors to be considered when assessing hardship include, but are not limited, to:
- Family ties to the United States and impact of separation;
- Economic detriment;
- Difficulties in adjusting to life in your home country;
- Quality and availability of educational opportunities in your home country;
- Inferior quality of medical services and facilities in your home country especially if your relative has health conditions;
- Psychological impact of relocation or separation;
- Ability of your relative to pursue his/her chosen employment in your home country; and
- Country conditions in your home country.
A “hardship”, “Stateside”, or “I-601A” waiver is discretionary, which means that even if you are eligible your application must warrant a favorable exercise of discretion. This means that to be granted such relief you must demonstrate your positive factors outweigh the negative factors present in your case. Positive factors include, but are not limited to, the following:
- Your family ties to the United States;
- Your involvement in the community;
- Your reformation and rehabilitation if previously convicted of a crime;
- The passage of time since any criminal conviction(s);
- Your employment history; and
- Hardship to your family.
Negative factors that will weigh against granting your application include, but are not limited to, the following:
- Your criminal record, if any, including the nature, recency and seriousness of your crimes;
- Whether you have other significant violations of immigrations laws; and
- Other evidence that supports shows you possess bad character or otherwise undesirable as a lawful permanent residence.