This article will discuss waiver of inadmissibility based on unlawful presence under INA §212(A)(9)(B) and USCIS Form I-601A. There are two types of unlawful presence, the “three -and ten -year bars under INA §212(a)(9)(B) and the “permanent bar under INA §212(a)(9)(C). Generally, there is no waiver for “permanent bar” under INA §212(a)(9)(C)(i)(l). Unlawful presence is defined as the period of time when a non-resident alien is in the United States without being admitted or paroled or when such alien is not in a “period of stay authorized” by the Secretary of the Department of Homeland Security.
According to INA §212(a)(9)(B)(ii), an alien accrues unlawful presence if such alien (a) is present in the United States without being admitted or paroled; or (b) such alien remained in the United States after the expiration of the period of stay authorized by the Secretary of the Department of Homeland Security. If an alien is in the United States without having been admitted or paroled by an immigration officer, the period of unlawful presence starts from the date the alien entered the United States.
Basically, if an alien enters the United States without going through the Immigration at the airport or land or sea border, that alien’s unlawful presence starts from the date the alien entered the United States. On the other hand, if the alien entered the United States with authorization, the period of unlawful presence starts after the date authorized stay expired.
The period of authorized stay is usually stamped on the alien’s passport upon entry into the United States and/or Form I-94 – arrival-departure record. This typically applies to those aliens who came to the United States as visitors. For those aliens that came to the United States as students and are admitted for the duration of status (D/S), and are issued Form I-94 marked as D/S, they are authorized to stay for the duration of their academic program, course of study or temporary work assignment to the United States, plus any additional grace periods that may be authorized afterwards.
The law also provides exception for accrual of unlawful presence to the following categories of aliens:
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Asylees: An alien who files a nonfrivolous asylum application does not accrue unlawfully presence during the pendency of such application.
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Minors: Children or individuals less than 18 years of age do not accrue unlawful presence. The period of time before an individual turned 18 years of age is not counted towards accrual of unlawful presence.
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Family Unity Beneficiaries: An alien who was a spouse or child of a legalized alien as of May 5, 1988.
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Battered Spouses and Children: These are self-petitioners under the Violence Against Women Act (VAWA) as long as there is a connection between their unlawful presence and the abuse they suffered.
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Victims of Severe Forms of Trafficking: Those victims of trafficking who can show that they suffered severe forms of trafficking and that such trafficking was part of the reasons they became or remained out of status in the United States. The period of unlawful presence will not be counted against them.
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There are some other circumstances that will excuse unlawful presence
Aliens who accrue more than 180 days but less than one year of unlawful presence in the United States on or after April 1, 1997, are inadmissible for three years. Likewise, aliens who accrue more than one year of unlawful presence in the United States on or after April, 1997, are inadmissible for the period of ten years. These periods of inadmissibility are not triggered until the alien departs the United States either voluntarily or by deportation or removal. If an alien accrues more than 180 of unlawful presence or more than one year of unlawful presence, they are not inadmissible unless they depart the United States voluntarily or by deportation or removal from the United States.
If an alien departs the United States after accruing more than 180 days but less than one year of unlawful presence, either by choice or force of law, such alien is inadmissible for a period of three years. During that three-year period, such alien cannot receive either nonimmigrant or immigrant visa to the United States. Specifically, such alien cannot get a nonimmigrant visa to come to the United States. Likewise, such alien cannot receive an immigrant visa to come to the United States or adjust status to that of a lawful permanent resident.
On the other hand, if the alien departs the United States either voluntarily or through deportation or removal from the United States, such alien cannot obtain a temporary visa to come to the United States and/or adjust status to that of a lawful permanent resident of the United States. If such alien presents himself or herself at the border, he or she will be refused entry into the United States.
PERMANENT BAR
An alien who accumulates more than one year of unlawful presence in the United States on or after April 1, 1997 may be permanently barred if such alien (a) voluntarily departs or was deported/removed from the United States and (b) he/she returns or attempts to return without permission or parole from the USCIS. The one year in question is an aggregate period of unlawful presence in the United States.
If an alien is arrested in the United States and the USCIS determines that such alien was previously in the United States, that such alien accumulated more than one year aggregate periods of unlawful presence and that the alien departed the United States voluntarily or was deported/removed from the United States, such alien is subject to criminal prosecution and permanent bar from the United States. This means that the alien cannot obtain a visa to enter the United States. The alien cannot adjust status in the United States even if he/she marries a United States citizen. The alien cannot adjust status even if he/she has a United States citizen child.
WAIVER
If an alien finds that he/she has accrued unlawful presence of more than 180 days or more than one year and must depart the United States to adjust status for any reason, the best solution is to file Form I-601A. This form is used to apply for a waiver of unlawful presence. If the application is approved, it means that the alien can travel overseas for consular interview without being barred from coming back if the visa or application for adjustment of status is approved after the interview.
Since August 29, 2016, the provisional unlawful presence waiver was expanded to cover all eligible aliens. Accordingly, all statutorily eligible aliens may apply for the waiver before traveling overseas for consular interview. The provisional unlawful waiver benefits those aliens who are not eligible to adjust their status in the United States and must travel overseas for the interview for adjustment of status.
The provisional unlawful waiver process allows immediate relatives, family-sponsored or employment-based, Diversity Visa winners who are inadmissible solely because of unlawful presence to apply for a waiver while in the United States before they travel overseas for consular interview for their green card. They get to stay in the United States for the processing of the waiver before traveling overseas. They get to find out whether it is safe to travel and the comfort of knowing that they will not be denied adjustment of status solely for unlawful presence.
ELIGIBILITY
To be eligible for the provisional unlawful waiver, the alien must meet the following requirements:
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The alien must be physically present in the United States to file the application for a waiver and also provides fingerprint.
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The alien must be at least 17 years old
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The alien must have applied for adjustment of status, must have received initial approval from the USCIS and the application must be pending before the National Visa Center because:
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The alien is the principal beneficiary of Form I-130; Form I-140; Form I-360 or special immigrant who has paid the immigration processing fee;
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the alien won the DV lottery and have been selected for interview;
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the alien is the spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to the Department of States through the National Visa Center; or
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the alien is the spouse or child of a DV winner; that is, the alien is the derivative beneficiary of a DV winner.
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The alien must be able to show that refusal of admission to the United States will cause extreme hardship to his/her United States citizen or permanent resident spouse of parent.
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The alien believes that he or she will be inadmissible only because of unlawful presence in the United States:
a. More than 180 days but less than one year, during a single stay; or
b. One year or more during a single stay.
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Meet all other requirements for the provisional unlawful presence waiver.
INELIGIBILITY
The following aliens are not eligible for the provisional unlawful presence waiver:
· Aliens in removal proceedings that have not been administratively closed.
· Aliens in removal proceedings that was administratively closed but have been reopened.
· Aliens with final order of removal, exclusion, or deportation (including an in-absentia order of removal, unless the alien filed application for permission to reapply for admission into the United States after deportation or removal at the time Form I-601A was filed.
THINGS TO KEEP IN MIND
The provisional unlawful presence waiver does not change your immigrant visa process or processing. The approval of your waiver does not mean your application for adjustment of status will be approved. If your provisional unlawful presence waiver is approved, you have to travel overseas for your interview at a United States Embassy or Consulate. Your application for adjustment of status will be cancelled if you fail to appear for your interview.