Could Applying for Provisional Waiver of Unlawful Presence Get Me Deported?

Green card seekers who are not eligible to adjust status within the U.S. and face significant waits abroad due to their unlawful presence have another option: applying for a provisional waiver of unlawful presence.

Green card seekers who are not eligible to adjust status within the U.S. and face significant waits abroad due to their unlawful presence have had another option: applying for a provisional waiver of unlawful presence (also known as the "stateside" waiver). For more information on who qualifies for this waiver, see Am I Eligible for Provisional Waiver of the Three- or Ten-Year Time Bar?.

(This comes from I.N.A. § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v).)

Some immigrants have been skeptical of this rule, wondering whether they should provide their names and addresses to U.S. Citizenship and Immigration Services (USCIS) and admit to living in the U.S. without lawful status.

Fortunately, the potential benefit of obtaining a green card without waiting outside the U.S. for several years ordinarily outweigh the risks of applying.

When USCIS May Refer Your Case to ICE

You might be worried that your personal information will be used by USCIS in order to place you into detention or in removal proceedings in Immigration Court if your application is denied. In most cases, this is improbable, but it is not impossible. If your case merely involves unlawful presence in the U.S., it is unlikely that the information you submit to USCIS will be used against you in this way.

USCIS has stated that it will not share information submitted on Form I-601A with Immigration and Customs Enforcement (ICE), the agency tasked with apprehending violators of immigration law, unless it involves an individual with a criminal history or fraud violations, or one who poses a threat to national security or public safety.

But be aware that USCIS could change this policy at any time, and the Trump administration has been particularly eager to deport any and all undocumented persons.

Take an honest look at your situation to determine whether your background might raise flags and eventually cause you to be detained or deported. Have you ever provided false information on a government application? Do you have multiple criminal convictions or a history of gang association? Have you been a member of a group that has been linked to terrorist activities?

If so, consult with an experienced immigration attorney who can advise you on your best course of action before you submit your information to USCIS.

Do Not Apply for Provisional Waiver If You Have Multiple Grounds of Inadmissibility

Everyone who applies for a visa is first checked to see whether he or she is “admissible” to the United States. One of the grounds of inadmissibility is unlawful presence in the United States of 180 days or more, but there are many more (such as based on medical history and criminal convictions). For more information, see Inadmissibility: When the U.S. Can Keep You Out.

Immigrants with multiple grounds of inadmissibility to the U.S. CANNOT apply for the provisional waiver using Form I-601A. They must instead apply for a waiver outside the U.S., using Form I-601.

If you ignore this rule and apply anyway, you risk at a minimum losing your application fee. In a serious enough situation, you might risk enforcement activities being started against you. If you think you might be found inadmissible not only because of your unlawful presence in the U.S., but also due to multiple criminal convictions or for another reason, you should consult with an immigration attorney before submitting your visa and waiver applications.

Think Twice About Applying If You Cannot Prove “Extreme Hardship”

The provisional waiver is a great step forward in reducing the time burden that many U.S. citizens and lawful permanent residents face before their qualifying relatives can receive green cards. However, it will not provide lawful status, employment authorization, protection from deportation, nor the automatic approval of a green card.

For that reason, you should check to make sure you meet all the requirements before you spend the time and money necessary to apply for the new stateside waiver only to possibly have it denied.

The only difference between the original application for a waiver of inadmissibility (using Form I-601) and the provisional waiver is that you will receive a decision before you need to leave the United States for your interview at a consulate abroad.

Just like with an I-601 waiver, you will still need to submit a considerable amount of evidence to prove that a waiver should be granted due to the “extreme hardship” that your U.S.citizen spouse or parent would face if your case was denied.

An immigration attorney can help you to assemble a convincing application package for USCIS, but if you doubt that you can prove extreme hardship, you might want to hold off providing personal information to USCIS until you have the necessary evidence. To learn more about what qualifies as extreme hardship, see, What Are the Chances that My I-601 Waiver Will Be Granted?

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