DHS Publishes Procedures for Green Card Applicants to Request Unlawful Presence Waiver

At long last, the Department of Homeland Security (DHS) has announced the regulatory procedures by which certain immediate relatives of U.S. citizens can request a provisional unlawful presence waiver (also known as the "stateside waiver"), and published the form to use for it (I-601A). This is big news – published in the Federal Register on January 3, 2013. It went into effect on March 4, 2013.

How big is this news? The provisional waiver provides an escape hatch for thousands of would-be immigrating family members of U.S. citizens who were trapped in a procedural tangle. They were, in effect, unable to leave the U.S. to attend the consular interview at which they might be awarded their green card because they’d spent so much time in the U.S. unlawfully. With unlawful presence of 180 days or more, they might been barred from returning to the U.S. for three years; and those with unlawful presence of one year or more could face a ten-year bar on returning. (For details on this ground of inadmissibility, see “Consequences of Unlawful Presence in the U.S. -- Three- and Ten-Year Time Bars.”

A waiver has long been available for this unlawful presence bar (legally known as a ground of inadmissibility). But until now, you had to leave the U.S. and deal first with the consulate, outside the United States, in order to apply for it. The consular officer had to determine that you were inadmissible and put your case on hold until you applied to USCIS (by mail) for a waiver.

This waiver application process is known for taking up to a year – far longer than normal visa processing. And, with no assurance that the waiver would be granted (it’s tough to qualify for, requiring a showing that denial would cause extreme hardship to the applicant’s U.S. citizen or permanent resident spouse or parent(s)), many people understandably said, “No way” to leaving the U.S. at all. No departure, no consular interview, no green card.

If you’re thinking, “Wait, I know plenty of people who lived in the U.S. illegally and got their green card without this problem,” you’re not imagining things. The unlawful presence bar has exceptions. Most notably, it doesn’t affect immediate relatives of U.S. citizens who entered the U.S. lawfully (most likely with a visa). Nor does it affect battered spouses using Form I-360. They, and some others, were able to use a procedure called “adjustment of status” to get their green card without leaving the U.S. for a consulate. But any green card applicant who entered the U.S. without inspection (perhaps by crossing the border) was highly likely to encounter the unlawful presence bar, and therefore can make excellent use of this new, provisional stateside waiver.

Now, for what the provisional waiver provides: It’s a chance for some (but not all) applicants to apply to USCIS for the waiver of inadmissibility BEFORE they leave the U.S. for the consulate. If the stateside waiver is granted, applicants can depart the U.S. for their consular green card (immigrant visa) interview with a high degree of confidence that their return visa will be granted (assuming their application is otherwise in order) and they won’t get stuck outside the U.S. borders. (Realize, however, that if the consulate ultimately rejects the visa application, the person could still wind up stuck outside the U.S., being inadmissible.)

How does the stateside waiver application process work, exactly? Some details will no doubt need to be worked out later, but what we know now is summarized in Nolo’s new articles, “Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar,” and “How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar.”