WAIVERS for Unlawful Presence (Perdon)

'Unlawful presence' is a term that describes being in the United States after the expiration of your authorized time to be here, or presence in the United States without being legally admitted or paroled.

The Immigration and Nationality Act (INA) provides that any person who has been unlawfully present in the United States for a period of more than 180 days but less than 1 year and voluntarily departs the United States (whether or not prior to the commencement of proceedings) is excludable for a period of 3 years. The INA provides that any person who has been unlawfully present in the United States for more than a year is excludable for 10 years.

An immigrant visa applicant who is ineligible for a visa under thse provisions for "Unlawful Presence" may not apply for a waiver unless he or she is the spouse or son or daughter of a U.S. citizen or lawful permanent resident (LPR).

The calculation of this period of time is not counted during certain periods for some situations.  Limited exceptions from this ground of exclusion exist for minors, asylees, family unity beneficiaries and battered women and children.

A waiver under INA 212(a)(9)(B)(v) can be granted if the applicant can establish that denial of his or her admission would result in "extreme hardship" for the U.S. citizen or lawful Permanent Resident.

What is required:

• Form I-601 "Application for Waivers of grounds of excludability
• Proof that you are either a spouse or a parent who is a U.S. citizen or lawful Permanent Resident.
• Evidence if other family members are U.S. citizens or lawful residents.
• Statements of 'Extreme Hardship' signed by the U.S. citizen/permanent resident spouse or parent
• Supporting evidence of extreme hardship to the U.S. citizen/permanent resident spouse or parent

How Do You Demonstrate Extreme Hardship?

Extreme hardship can be demonstrated in many aspects of your son or daughter, or spouse's life such as

PERSONAL CONSIDERATIONS - Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

HEALTH - Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.
 
FINANCIAL CONSIDERATIONS - Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).

EDUCATION - Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.

SPECIAL FACTORS - Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

ANY OTHER FACTOR or situation which you feel may help you meet the burden of extreme hardship.

A waiver is dependent first upon a showing that keeping the applicant outside the US imposes an extreme hardship on his or her qualifying family member. The key term in the provision is "extreme" and thus you must show that in your case there is more than the average actual or prospective injury to the United States citizen or lawful permanent resident, for the bar (inadmissibility) to be removed. You will be required to present solid documentary evidence of everything that you assert proving that failure to receive the waiver requested will result in extreme hardship to US citizen or US Resident spouse or parent.

A waiver is also dependent upon a showing that the waiver applicant exhibits characteristics of a person who merits a favorable exercise of discretion by the officer adjudicating your request.  This means that you must present evidence that the applicant is a good person, with good moral character.

Our office will work closely with you to collect this evidence and to create your waiver packet. It is important that we are very detailed as to how you meet the "extreme hardship" burden. Keep in mind that the hardship must be to your qualifying family member - not to the waiver applicant.

We have been very successfully preparing Unlawful Presence Waivers for the past four years with a 100% success rate. Please do call or send an email to our office to discuss your situation. We can provide you with a case analysis and assist you with this very important procedure.