All of these scenarios could point to the need for an unlawful presence waiver. If you have been in the United States for one year or more and then departed the United States, your departure would trigger a 10 year bar of reentry. If you overstayed your visa in the U.S. by 180 days but less than one and then left the United States – even for short trip abroad or even to interview for your green card at a consulate abroad, you would be barred from reentering the U.S. for three years.
These unlawful presence bars can only be waived if you either have a U.S. citizen or permanent resident parent or spouse. Note, even if you have a U.S. citizen child or permanent resident child, you cannot use the child as a qualifying relative to be eligible for this waiver.
The waiver also requires that your qualified relative – the U.S. citizen or permanent resident spouse or parent – will suffer “extreme hardship” if you were not allowed to return to the U.S. in the ten or three year period, depending on how long you overstayed your visa or how long you were in the U.S. illegally. What qualifies as “extreme hardship” can be difficult to measure and it is not defined in the law. CIS will recognize that anyone separated from a loved one as a result of an immigration bar is likely to suffer depression, a potential loss of income, help with the family care, potential financial, career, or even home loss, and those are normal, not extreme consequences of these bars. Being granted a waiver, thus, can take a lot more.
Our job as attorneys is to help you organize your story and identify potential hardship arguments that will stand out among the crowd. Hardship arguments often fail because they are not documented well or they do not take into account that many people are in the same circumstances and even that some of the hardship was voluntarily taken on – i.e., you knew what you were getting into when marrying someone without valid status and you shouldn’t have bought that house or bought that new car or racked up your credit cards if you knew there was a possibility that your other income could disappear if the other income earner – your immigrant spouse – was forced to leave the U.S.
The other often overlooked part of unlawful presence waivers that can be crucial to an approval is documenting that the immigrant deserves the waiver in a favorable exercise of discretion. Remember, Congress created these unlawful presence bars to have such severe consequences with the intent to deter people from breaking the law. The waiver is an extraordinary measure and someone who has multiple criminal convictions, did not pay taxes, is not involved in their local community, or has no proof that they are good person who despite this immigration violation, deserves a second chance, will likely lose their case because they can’t prove they deserve the waiver.
At SGG, our family and removal experts represent clients from all over the world on unlawful presence waivers, both traditional I-601s when there is another ground of inadmissibility involved such as misrepresentation or a criminal issue, and in the provisional waivers for unlawful presence – the I-601A. We have a strong success rate on waiver cases because we have been doing them for years and know what works and what doesn’t. Our attorneys are constantly asked to speak about waiver issues and are published in major publications on waiver topics, teaching both the general public and other attorneys the pitfalls in these cases. And we only work with clients who are serious about their cases and understand the level of work involved from not only us but the client in gathering documents. If this sounds like you, call us today. Let’s keep your loved one in the U.S. or get him or her back if stuck abroad.