New Rules For Unlawful Presence


On January 3, 2013, the USCIS published the rule on the unlawful presenceUnlawful Presence waiver (I-601A). Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States have to leave the U.S. as part of the legal immigration process.  Further, they cannot legally return to the U.S. for as long as 3 to 10 years. The new rule would streamline the waiver application process (based on unlawful presence).  It would permit the processing of the waiver application in the United States before the immigrant visa applicant departs the U.S. for the immigrant visa interview at the Consulate.

As of March 4, 2013, certain immediate relatives of U.S. citizens (the spouse, minor children, or parents of a U.S. citizen) who are physically present in the U.S. may request provisional unlawful presence waivers prior to departing from the U.S. for consular processing.  This eliminates the risk of long-term separation that has always been necessary to even seek the waiver.

For example, John Doe, a foreign national, entered the U.S. in 2005 without inspection. In 2007, John marries Jane, a U.S. citizen.  The Doe family wants to adjust Mr. Doe’s status, but an individual, like John, is ineligible to obtain adjustment of status to residence.

So, under the old law John would have had two options:

  • First, John could seek residence through processing an immigrant visa at a U.S. consulate in his home country. He would have to leave his family here in the U.S. and possibly his job.  As John entered the U.S. in 2005 without inspection and was not married until 2007, he would also be subject to a TEN YEAR bar.
  • However, the ground of visa ineligibility may waive (by the consulate) in John’s home country.  Thus, a visa can be issued in the case of extreme hardship. So, he could not enter the U.S. again without applying for a waiver.  He must also prove that by denying him an immigrant visa for ten years, Jane would suffer extreme hardship. But, to apply for the waiver, John would have to first apply for the visa and receive a denial.
  • Second, John could remain in the U.S. in unlawful status. John would not be able to seek lawful employment, a social security card or even a U.S. driver’s license.  However, John could at least be with his wife Jane for the next ten years.  However, his unlawful presence in the U.S. would also risk removal and subject him to a TEN YEAR bar.

Under the Process that enters in effect March 4, John would still have to return to his home country before obtaining a visa.  But he could apply for a waiver before returning to his home country. John would still have to prove Jane would suffer extreme hardship in order to obtain the waiver.  The difference is that under the new process, John would know in advance if he would be able to return to the U.S.


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