By Paul Sloderbeck, Immigration Attorney
September 09, 2015

Many immigrants have United States Citizen or Legal Permanent Resident family members who have petitioned for them, but they have entered the United States without a visa. This often means they have to leave the United States and go to an interview at the Consulate in their home country before returning as a Legal Permanent Resident.

At the Consulate, they are often told they have a ten year bar for having entered and remained in the United States illegally.

However, if your spouse or parent is a US citizen or Permanent Resident, there may be a waiver available, which would allow you to not have to wait ten years for an Immigrant Visa.

Typically, you can only receive a waiver of your unlawful presence if you can show extreme hardship on your spouse or parent who is a Legal Permanent Resident or United States citizen. Extreme hardship may include financial hardship, medical hardship, educational hardship, significant family ties in the United States, and country conditions in your home country. 

The most significant recent change in this area has been the provisional waiver of unlawful presence. This allows you to apply for the waiver and receive a decision in the US before leaving for the interview. One of the main groups of people it benefits are spouses of United States citizens.

As an undocumented spouse, you must show extreme hardship on your US citizen spouse or parent. If you are approved, you can then leave for your interview. The waiver only covers unlawful presence, and not other inadmissibilities.

Part of President Obama’s executive action is a planned expansion of the provisional waiver. This will expand the waiver to other family member categories. If you can show extreme hardship to your Legal Permanent Resident spouse or parent, you will be able to apply for the waiver from within the United States.

The expansion of the wavier will be an important change because it will remove some of the uncertainty for more people who should qualify for an immigrant visa, but will face a bar due to their unlawful presence. The process is not available yet, but we are eagerly awaiting it.

While this waiver is a great option for many people, it does not allow a person to show extreme hardship to their United States citizen sons and daughters. Many people have children who are twenty-one years old and could petition for their parents. However, the waiver is not available to parents of US citizens unless the parent has a spouse or parent who is a Resident or Citizen. This is a difficult situation that many parents find themselves in.

There are some cases in which the applicant would not have to file a waiver, including those with petitions filed before May 1, 2001.

Waivers are complex and lengthy cases to prepare. Please consult a licensed Immigration attorney to help you through the process.