‎Waiver

I-601 Unlawful Presence and I-601A Provisional Waiver

What is Illegal Presence?

People who have lived in the United States without valid immigration status can accumulate "unlawful presence." Illegal presence is important to consider as it subjects people to different types of inadmissibility "bars". The most common bars of inadmissibility are known as the three and ten year bars...

People who stay in the United States for more than six months without legal immigration status are subject to the three-year ban, if they leave the United States and then apply to return later. For those individuals who stayed in the United States for more than a year without legal status, the ten-year inadmissibility prohibition kicks in when individuals apply for admission to the United States at a future date.

Unlawful Presence Waivers Filed Outside the United States

There is also a "permanent bar" of inadmissibility that applies to people who have accumulated more than a year of illegal presence, then leave the United States and try to return. Aliens who are subject to the three- and ten-year bars who wish to return to the United States as immigrants (with a green card for residents) can apply for an unlawful presence waiver with Form I-601. The success of the I-601 unlawful presence waiver requires the applicant to demonstrate that an immediate relative would suffer extreme hardship in the absence of the immigrant she requests upon returning to the United States.

I-601A Stateside Provisional Waiver

Provisional waivers are very useful for people who are currently in the United States, and who usually have not been deported. For this reason, provisional waivers, or I-601A "stateside" waivers, are different from the other types of waivers described on this website in that they do not apply to people living outside of the United States.

Many people who have been deported have heard a lot about the provisional waiver and mistakenly believe that it can be used to help return to the United States. The provisional waiver is a waiver of the unlawful presence of the spouses of US citizens, and parents of US citizens who are over 21 years of age. Waiver of unlawful presence for persons currently living outside of the United States is filed on an I-601 application. In contrast, those individuals who currently live in the United States, and who generally have no prior immigration or criminal violations, are eligible to apply for a provisional waiver of unlawful presence with an I-601A application.

People who are applying for residency or ‘green card’ generally use illegal presence waivers. For non-immigrants applying for tourist visas or border crossing card, the section 212 (d) (3) waiver is normally required. Irregular presence

Irregular presence (INA § 212 (a) (9) (B)): any foreign national who has been illegally present in the United States for more than 180 days, but less than one year, is inadmissible in the territory for 3 year. Beyond one year of illegal presence, the duration of ineligibility increases to 10 years.

Repeated irregular presence (INA § 212 (a) (9) (C)): any foreign national having been illegally present on the land an American party for a total (cumulative) period exceeding 1 year, or having been the subject of an expulsion decision, and who attempts to come to the United States without submitting to border controls is permanently inadmissible. There is a procedure for applying for a pardon in this case, but it only applies after the national has been outside the United States for 10 years.

Waivers for non-immigrant visas: Section 212 (d) (3)

The waiver granted under Section 212 (d) (3), allows a foreign national to be authorized to enter the United States even if he or she is theoretically inadmissible due to '' a criminal conviction, malicious acts, or exceeding a residence permit.

Visa rejected

The risk of harm to society if the person is admitted to the United States,

The seriousness of the crimes or violations of immigration laws committed by the applicant (if applicable), and

The nature of the reasons why the applicant wishes to enter the United States.

This category of waivers is relatively generous as it removes most cases of ineligibility. However, granting this pardon is discretionary, and the applicant must meet the above three conditions before being approved.

It is recommended that you file this exemption request at the same time as a non-immigrant visa application (tourist, work, or other) with the US Consulate of the applicant's place of residence. Consular or border control services determine the admissibility of the individual's application, and then the United States Immigration Service (USCIS) decides on the admissibility of the application itself.

If you are trying to enter the United States with an ESTA, and border control services have told you that you will only be able to return with a tourist visa (B1 / B2), you will not necessarily need to make an exemption request in addition to the visa request.

I-212 exemption

The I-212 exemption applies to foreign nationals wishing to come to the United States after having been excluded. An immediate expulsion being accompanied by a five-year stay ban and a deportation decision by a judge accompanied by such a 10-year ban, the individual concerned will have to apply for an exemption if he or she she wishes to return to the United States before the end of these deadlines. The same rule applies if the expulsion was for a conviction for a serious felony, but in this case, the ban is 20 years.

Most people who qualify for this waiver apply to the U.S. Consulate in their place of residence. These people accompany it with an immigrant visa application if he or she is married to an American citizen, or a nonimmigrant visa application, and if necessary a waiver request I- 601 to seek forgiveness for other violations.

Some people may file this request with the United States Immigration Service (USCIS): this possibility applies to immigrant visa applications that do not come with an I-601 waiver request, and requests for adjustment of status.

In all cases, the I-212 exemption request must be accompanied by documents establishing the following:

The basis for the eviction

The length of the expulsion

Duration of residence in the United States

The morals and moral qualities of the applicant

Compliance with the law and regulations by the applicant

Evidence of the applicant's rehabilitation and change of conduct

Family responsibilities of the applicant

Ineligibility in the United States under other laws

The suffering caused by the exclusion for the applicant and for others

The usefulness of his professional skills in the United States

There are multiple reasons why foreign nationals may be declared inadmissible to the United States. The most common are a criminal conviction (or confession of a crime), fraud or misrepresentation, being / having been a burden on society, irregular presence - and repeated irregular presence, illegal entry into the territory, the practice of illegal trafficking, and terrorism.

Criminal record ineligibility (waiver under section 212 (h))

A foreign national is inadmissible to the United States if he or she has been convicted, or confesses to having committed acts qualifying for a crime involving moral turpitude (crime involving moral turpitude - CIMT); or qualitative of an offense involving an illegal substance.

There is no definition of CIMT. However, case law has interpreted them as inherently low, base, depraved acts, contrary to common rules of morality and to the behavior expected of a person in a society.

There are two exceptions to the eligibility rule for a CIMT, the first being when the foreign national committed the crime before they turned 18, and more than 5 years before they applied to enter the United States. The second exception concerns minor offenses, defined as those punishable by a maximum of one year in prison, and for which the national has been sentenced to less than 6 months' imprisonment.

In addition, a foreign national will be qualified as inadmissible in the following cases:

Conviction for two or more offenses: any foreign national convicted of more than two offenses for which the cumulative sentences of imprisonment exceed 5 years are inadmissible. It does not matter whether these sentences were passed in a single trial or not, or whether these offenses involved crimes of moral turpitude or not.

Drug trafficking: a foreign national will be declared inadmissible if the authorities can reasonably suspect that he or she is a trafficker of controlled substances, or if he or she is known to aid, assist, instigate, and collude with drug traffickers. Regulated substances.

Prostitution: a foreign national practicing prostitution, who wishes, attempts, or has attempted to practice prostitution, or has been a pimp in the past 10 years, is inadmissible.

Human Trafficking: A foreign national is inadmissible to the United States if he or she carries out or conspires to carry out human trafficking in or out of the United States. In addition, an individual will be qualified as inadmissible if he is known to have, or suspected of having aided, assisted, instigated or colluded with persons practicing this type of trafficking. There is an exception to this inadmissibility when these acts concern the children of the national requesting a derogation.

Money laundering: any individual known to have carried out - or suspected of having carried out - money laundering, or wishing to come to the United States to engage in it, is inadmissible on American territory, in the same way as people known to have helped, assisted, instigated, or colluded with this type of trafficking.

Fraud or misrepresentation (exemption under section 212 (I))

Anyone seeking a visa, document-allowing entry into the United States, or any other advantage, by fraud or by making a false statement, is inadmissible for life in the United States.

There is no request for waiver of ineligibility caused by a false declaration of citizenship, made for obtaining benefits under immigration laws or any federal and state law.

Procedure for requesting an exemption

The waiver request can be sent along with an immigrant visa application to the US Consulate in the foreign national's place of residence. It can also be sent to the United States Immigration Service (USCIS) for processing directly by the office that will handle the request for adjustment of the foreign national's status. The immigration judge may also ultimately deal with it during exclusion proceedings.

The candidate for the exemption must prove that the refusal of his request would cause particular suffering for the member of his family who is a US citizen. Please note, depending on the derogations, the family relationship required for it to be considered under the derogation varies.

The granting of the waiver is discretionary, but the following factors come into consideration:

Have family members who are permanent residents or United States citizens, thus binding the applicant to the United States

Family ties meeting the criteria required by the exemption

The conditions in the country in which the applicant's family member (s) will be forced to settle down if the request for forgiveness is refused, and the links of these parents with the country in question

The financial consequences of leaving this country

Sanitary conditions in the country in question, particularly where appropriate care for the health condition of the permanent resident parent or U.S. citizen is not provided in the country in question

The applicant's professional career

The existence of properties or businesses

Evidence of the value and usefulness of the applicant in his community

Evidence of his rehabilitation, in the event of previous convictions

Any other evidence to demonstrate the good character of the applicant