Family Unity and the Provisional Unlawful Presence Waiver

By: Lilli Berbano Baculi, Esq.

Under current immigration laws, there is a bar to admissibility to the United States for foreign nationals who are “unlawfully present” in the United States. An unlawfully present foreign national is a person who was inspected at the border and admitted into the United States but who remained in the United States beyond the date of his authorized stay; or a foreign national who entered the United States without inspection meaning, the person was not inspected or admitted by an immigration officer.

Pursuant to the Immigration and Nationality Act (INA) section 212, a foreign national who is unlawfully present for more than 180 days but less than 1 year, and who left the United States voluntarily before removal proceedings began, is inadmissible for 3 years from his/her date of departure. Moreover, a foreign national who was unlawfully present for 1 year or more is inadmissible for 10 years from the date of departure. Foreign nationals in the United States who are unlawfully present do not trigger the 3 or 10 year bar merely by being physically in the United States. The bar is triggered upon a person’s departure from the United States.

In 2012, USCIS announced a new policy – a Waiver of the 3 or 10 year bar for unlawful presence. The new rule permits a discretionary waiver of unlawful presence by the attorney general in the case of a foreign national seeking admission to the United States who is the spouse or parent of a U.S. citizen or green card holder if the denial of such waiver would result in “extreme hardship” to the U.S. citizen or green card holder spouse or parent.

The Waiver effectively allows families to remain together in the United States until a decision is reached on the waiver for unlawful presence. It is important to note that the Waiver only waives the inadmissibility ground of unlawful presence and nothing else. If the Department of Homeland Security/United States Citizenship and Immigration Services (DHS/USCIS) has reason to believe that the noncitizen may be subject to inadmissibility grounds other than unlawful presence, the Waiver will be denied.

Applicants seeking to utilize this waiver process must establish “extreme hardship” to a qualifying immediate relative. Under the final rule, a qualifying relative is limited to a U.S. citizen spouse or parent. To this end, DHS cannot include children as qualifying relatives for purposes of the extreme hardship requirement because the statute only permits a showing of extreme hardship to a spouse or a parent as a basis for granting the parent. Thus, a showing of extreme hardship to an LPR spouse or parent will not satisfy the requirement.

In addition, this waiver process will remain available only to those individuals who are currently in the United States and will be departing for consular processing abroad. Individuals already outside of the U.S. must pursue a waiver of inadmissibility through the old process.

“Unlawful presence,” “extreme hardship,” and “qualifying relative” are terms of art. An experienced immigration firm or attorney will be able to help you understand what these terms mean specific to the regulations, how the new waiver process might be applicable to your particular case, and the options available to you under the evolving immigration laws.

Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 509-7280; lbaculi@ctvattys.com.