Most individuals who enter the U.S. on a visa or through the visa-waiver program are given a date specific that they must leave, often marked on Form I-94 (CBP no longer issues paper I-94 cards, but I-94 information is available online). If someone stays past the date they were required to leave, they are out-of-status and begin to accrue unlawful presence in the United States. Once someone accrues 180 days of unlawful presence, that person becomes inadmissible into the U.S. and is barred from reentering the U.S. for a period of three years. This bar increases to ten years after accruing one year of unlawful presence.
If someone entered the U.S. without being inspected by an immigration official (such as by crossing the Mexican or Canadian border), that person has been present unlawfully and accruing unlawful presence from the day they entered. For as long as someone is deemed “inadmissible” they cannot be granted a visa or a green card in the United States. However, because the law bars re-entry for so many years, many individuals do not feel safe leaving the U.S. even if they are otherwise eligible for a green card. Fortunately, such individuals may be eligible for a provisional waiver.
What does “admissibility” have to do with whether someone can get a green card?
There are two ways to apply for a green card. If someone is outside the U.S. they can apply to consular process and have their interview at the U.S. consulate in their home country.
If they are currently in the U.S. they can apply to adjust status from within the U.S. and have the interview here with a U.S. Citizenship and Immigration Services (USCIS) officer. The general rule under U.S. immigration law is that if a noncitizen is in the U.S. without lawful status, they cannot change from being here unlawfully to being here lawfully from within the U.S.; they must return to their country to consular process. There is an exception to this general rule for the spouses of U.S. citizens – even if they have fallen out of status, as long as they were inspected upon entry, they can generally get your green card from within the U.S. However, if they entered the U.S. without inspection “EWI” (by crossing the border without permission), they cannot apply for the green card from within the U.S. (However, because immigration law is very complicated there are number of exceptions to the general rule which are beyond the scope of this FAQ.)
What was 245i?
There used to be an exception for those who entered without inspection under section 245i of the immigration law. It allowed people to apply for a green card from within the U.S. if they paid a $1000 penalty. That exception expired in April 2001. However, if a family member or employer filed a petition for an immigrant visa (green card) for someone before April 2001, that person may still be “grandfathered in” under 245i and eligible to adjust status from within the U.S.
I’ve been in the U.S for more than 180 days without status. Do I need to apply for a waiver?
Maybe. If someone entered the U.S. with a valid visa and subsequently fell out of status, that person should still be able to apply for adjustment of status if the green card is based on their marriage to a U.S. citizen. However, if someone entered the U.S. without a visa and without being inspected by U.S. immigration officials, that person is not eligible to apply for adjustment of status, and must apply for an immigrant visa at a U.S. consulate abroad. If they have been in the U.S. without status for more than 180 days, they may be found inadmissible, and leaving the country to attend the visa interview may subject that person to the three or ten year bar. They would need to apply for an unlawful presence waiver in order to be admitted back into the U.S. with their immigrant visa.
What does the provisional unlawful presence waiver do?
A person who is subject to the bar is required to get the bar “waived,” or forgiven, by filing a waiver application. Then, the person must return to their country of origin to apply for an immigrant visa, rather than adjusting status in the U.S. Since it can be difficult to have the waiver approved, many individuals who could get a green card through a family member have chosen not to apply because they are afraid of leaving the U.S. and then not being able to return.
On March 4, 2013, USCIS began allowing individuals whose sole ground of inadmissibility is unlawful presence to apply for a provisional waiver of the three and ten year bar before leaving the U.S.. This allows the person to remain here while USCIS makes a decision on the waiver, and then return to the country of origin to attend their immigrant visa interview only after the waiver is approved.
Do I qualify for a waiver?
In order to qualify for the waiver, one must meet ALL of the following conditions:
- Be at least 17 years old
- Be physically present in the U.S.
- Be the “immediate relative” (spouse, parent, or unmarried child under the age of 21) of a U.S. citizen
- Have an approved I-130 petition filed by their immediate relative
- Have an immigrant visa case pending with the Department of State and have paid the $230.00 immigrant visa application fee (a copy of the official receipt for this application fee must be submitted with the waiver application)
- Be able to demonstrate that the U.S. citizen spouse or parent will suffer extreme hardship if a waiver is not granted
- Not be subject to any other grounds of inadmissibility
I’m currently in removal proceedings. Can I apply for the waiver?
Unless a foreign national’s removal proceedings have been administratively closed and taken off the EOIR calendar, they cannot utilize the waiver. If their removal proceedings have been closed, they can submit the waiver application; once approved, they should contact EOIR and request an order officially terminating their removal proceedings before leaving the U.S. for the visa interview. If they don’t fully terminate their removal proceedings before leaving, the waiver will be revoked upon their departure from the U.S. It would be helpful to consult with a lawyer about this process.
What do I need to do before applying for the waiver?
If a foreign national needs to apply for a provisional unlawful presence waiver, they can do so in conjunction with consular processing. The first step is for the U.S. citizen spouse to file an I-130 immediate relative spousal petition. Once the I-130 has been approved, the National Visa Center will send the foreign spouse information regarding the processing fee for applying for an immigrant visa. Once the immigrant visa application fee has been paid, the foreign spouse can file the Form I-601A application for a provisional unlawful presence waiver. They must include both the I-797 approval notice from the spousal petition and the immigrant visa fee receipt along with the waiver application.
Is there a filing fee for the waiver itself?
Yes, the filing fee is $670, which includes $585 for Form I-601A and $85 for the biometric services fee. There are no waivers for these fees, but applicants who are 79 years of age or older are not required to pay the biometrics services fee.
What do I need to show in order to be approved for a waiver?
In order to receive a provisional unlawful presence waiver, the applicant will need to prove that their U.S. citizen spouse will suffer “extreme hardship” if they are not admitted back into the U.S. Keep in mind that USCIS only considers the hardship that will be caused to the U.S. citizen spouse. Extreme hardship to the foreign spouse or to other individuals does not factor into this analysis.
What qualifies as extreme hardship?
While not exhaustive, USCIS takes the following factors into account when considering extreme hardship:
- Health concerns (e.g., the U.S. spouse is suffering from a chronic condition and receives specialized treatment in the U.S. that would be unavailable abroad)
- Financial considerations (e.g., the U.S. spouse will suffer a loss from the sale of a home or business or will have few employment prospects if forced to relocate abroad)
- Educational opportunities (e.g., the U.S. spouse will lose the opportunity to access higher education or will have to undergo substantial retraining, especially if in a foreign language or culture)
- Personal considerations (e.g., the U.S. spouse has no other family abroad and will face separation from other close relatives in the U.S. or will be forced to give up substantial community ties)
- Special factors (e.g., the U.S. spouse fears persecution or stigma abroad or will face cultural, language, religious, or ethnic obstacles to integration)
For lesbian and gay couples, if the foreign spouse comes from a country that persecutes or stigmatizes lesbian and gay people, it will also be helpful to submit information about the possible mistreatment that the U.S. citizen would face if forced to live in his or her spouse’s country.
Are there other considerations that factor into the decision regarding whether or not to grant a waiver?
Yes. USCIS ultimately has discretion as to whether or not to approve a waiver request even if an applicant can show extreme hardship to the U.S. citizen spouse. The foreign spouse will be required to submit a statement in support of the waiver application, and in addition to discussing the extreme hardship to the U.S. citizen, this statement should also include information about the foreign spouse’s ties to the U.S. This can include evidence of other family relationships, community involvement, education in the U.S, and overall good moral character.
What happens once the waiver is approved?
The foreign spouse will receive a notice from the National Visa Center with information about the date, time, and location of the immigrant visa interview, which will take place at a U.S. embassy or consulate abroad. At this interview, they will still have to prove that they are not subject to any other grounds of inadmissibility (such as having committed a serious crime or having certain communicable diseases). If no other grounds of inadmissibility apply, they should be approved for an immigrant visa. If the applicant is found to be subject to another ground of inadmissibility, their unlawful presence waiver will be revoked, and they will have to submit a Form I-601 Application for Waiver of Grounds of Inadmissibility for unlawful presence and for any additional grounds of inadmissibility. Unfortunately, if this happens, they will be stuck in their home country waiting for a decision on the I-601 waiver.
What happens if the waiver is denied?
If the unlawful presence waiver is denied, there is a risk that the foreign spouse could be placed into removal (deportation) proceedings. USCIS has indicated that they are referring these cases to Immigration and Customs Enforcement based on existing guidance regarding enforcement priorities. You can find more information on this guidance as it relates to gay and lesbian binational couples on our Prosecutorial Discretion FAQ.