If you are currently in removal proceedings and have a U.S. citizen spouse, parent, or child over the age of 21, you may be eligible to apply for a family-based green card and, to overcome any unlawful U.S. presence of six months or more, a waiver for your unlawful presence in the United States. Until recently, applying for such a waiver was impossible without leaving the United States, but the new I-601A unlawful presence waiver has changed this.
The sections below detail the steps needed to take advantage of this new waiver if you are currently in removal (deportation) proceedings. This is a multi-step, complex process, however, so getting the help of an experienced immigration attorney would be an excellent idea.
First, your U.S. citizen spouse, parent, or child over the age of 21 must file an I-130 petition on your behalf, asking to serve as your sponsor for U.S. lawful permanent residence (a green card). Your petitioner must send the I-130 to U.S. Citizenship and Immigration Services (USCIS), after which the petitioner will get a receipt notice and finally an approval or denial.
For more detailed information on the I-130 process, see Nolo’s articles, “Filling Out, Submitting Form I-130 for Parents of a U.S. Citizen,” and “Preparing an I-130 Visa Petition for the Immigrating Spouse of a U.S. Citizen.”
If USCIS approves the I-130 your relative filed for you, you can apply for an I-601A waiver. For more information on preparing the paperwork for this waiver, see Nolo's article, “Filling Our Form I-601 A to Request a Provisional Waiver.” You will need to submit your completed waiver application to USCIS (not to the court) while you are still in removal proceedings. Your immigration attorney can ask for a continuance (more time) in your removal case while this petition is pending a decision by USCIS.
Depending on the immigration court, you may be required to show proof that USCIS approved the I-130 petition and/or I-601A waiver. Once you have these documents, your immigration attorney can file a motion to administratively close or terminate your removal proceedings with the immigration court. This ends your removal proceedings so that you can go forward with the normal application procedures, or what’s known as consular processing, in your home country.
The last step, after your case has been administratively closed or terminated by the immigration court, is to undergo consular processing in your home country. This is the same procedure every green card applicant goes through.
Once your I-130 petition is approved, USCIS will send it to the National Visa Center (NVC) and you will be scheduled for an interview at the U.S. consulate in your home country.
After you attend your interview, the consulate will process your case and grant or deny your visa. If your visa is granted, you will return to the United States and be granted legal permanent residency upon your arrival. Your actual green card will arrive some weeks later.
Because the process of applying for the petition, waiver, and order from an immigration court are complicated, you should consult an immigration attorney before making a decision on whether this is right for you, and for help with this process.