UPDATE: Now relatives of Lawful Permanent Residents aka Green Card holders qualify for the unlawful presence waiver (I-601A) as well, due to the Expansion of provisional waiver process announced by USCIS effective since Aug 29, 2016.

What is Stateside Waiver?

Certain immigrant visa applicants who are immediate relatives of U.S. citizens or Lawful Permanent Residents (LPRs) may qualify to apply for provisional unlawful presence waivers (aka ‘Stateside Waiver’) before they leave the United States for their consular interview to pursue an immigrant visa in their home country. Some individuals often would have triggered a 3 year or 10 year ‘bar’ for having accumulated unlawful presence time in the United States. In short, spending more than 180 continuous days unlawfully in the U.S. would result in a time-bar, which is a period of time for which a person is barred from returning back to the U.S.

Traditional waivers that used to forgive or “waive” these bars would have required a very long and stressful period of time outside of the U.S. that not only separated families but also discouraged many to seek Permanent Resident status.

What benefit does the Stateside Waiver approval offer?

The Provisional Unlawful Presence waiver allows for applicants to process the waivers while being physically present in the United States; and after obtaining the waiver the time spent outside the U.S. waiting for the visa would be very minimal, from a few days to a few weeks. After the immigrant visa is issued, the individual will be allowed to enter the United States and receive their permanent resident card (Green Card) in the mail. This helps significantly reduce the time such family members may have to live apart from each other while pursuing immigrant visas.

What happens if the waiver petition is denied?

Even in the case of denial of waiver, it offers a clearer picture of an individual’s case and, working with their lawyer, they can discover other opportunities to re-apply while continuing to stay in the U.S. with their family.

Who should consider filing this waiver?

Relatives of U.S. Citizens or Lawful Permanent Residents (LPRs) may qualify to have their unlawful presence “waived” or “forgiven” prior to pursuing an immigrant visa in their home country, also known as consular processing. The applicant may have an opportunity to file for a waiver BEFORE they leave the U.S. to receive a decision from the USCIS.

Am I eligible?

Applicant must be able to demonstrate that their relative (spouse or parent) who is a U.S. citizen or Lawful Permanent Resident (LPR) will suffer extreme hardship without the applicant’s presence/admittance into the U.S. What constitutes extreme hardship is at the discretion of the authorities, and it could be a combination of medical, financial, educational and other many factors that can affect not only the U.S. citizen / LPR member but the family as a whole. Applicant must have an approved Petition I-130 (Alien Relative) before applying for waiver.

Parents of a U.S. citizen child should note that USCIS unfortunately does not consider children to be qualifying relatives for the purpose of proving extreme hardship. Only exception is when one of the parents is also a U.S. citizen or Lawful Permanent Resident (LPR) and would experience extreme hardship either (1) in case when U.S. citizen/LPR parent chooses to remain in the U.S. without the spouse, or  (2) in case when U.S. citizen/LPR parent chooses to relocate abroad to reside with the spouse.

Consulting with an experienced immigration lawyer to analyze particulars of your case for potentially having a time-bar and to establish a convincing extreme hardship case is highly advisable. What exactly constitutes acceptable legal grounds for extreme hardships and unlawful presence usually requires careful legal analysis depending on type of visa(s) held previously, violations of any immigration rules etc. The Law Office of Christian Y. Alvarez has successfully handled many such waiver cases and invites you to discuss your immigration matters with us.

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USCIS filing fee for waiver Form I-601A is $585. There’s a $85 biometric services fee (for applicant of age less than 79 yrs). Filing fees are subject to change.