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Eligibility criteria for provisional unlawful presence waivers

On Behalf of | May 1, 2024 | Visa Waiver Issues |

Many immigrants live in the United States without legal status. For them, the dream of getting a green card can feel out of reach due to a period of unlawful presence. This can happen when someone overstays a visa or enters the country without permission.

Traditionally, such individuals would face a big hurdle. They would have to apply for a waiver from outside the U.S., often after a long separation from family. The good news is that the provisional unlawful presence waiver program offers a glimmer of hope.

Who can apply for a provisional waiver?

The program streamlines the process for some immigrants. It lets them apply for a waiver before their visa interview at a U.S. consulate abroad. However, there are specific requirements that must be met. First, applicants must be in the U.S. when filing the application. They must also be in the U.S. for biometric data collection. Additionally, applicants must be 17 years of age or older.

Applicants must also have a pending immigrant visa case with the Department of State (DOS). This could be via an approved I-130 petition. It must be filed by a qualifying relative (parent, spouse or child who is a U.S. citizen or green card holder).

Another key rule is that it must be shown that refusing entry to the U.S. would cause great hardship. The hardship would be for the applicant’s qualifying U.S. citizen spouse or parent. The U.S. Citizenship and Immigration Services (USCIS) considers many factors when evaluating hardship. These include medical issues, financial dependence and emotional ties.

Important considerations

The waiver program offers a path forward, but it doesn’t guarantee approval. Meeting the eligibility criteria doesn’t guarantee a successful application. USCIS will thoroughly assess each case, particularly evidence of extreme hardship.

The waiver program provides a chance for some immigrants. It lets them seek permanent residency without the hardship of a long separation from loved ones. Those who think they might be eligible should review the criteria carefully. They may also benefit from seeking legal help. Accurate information and personalized legal advice can greatly improve an applicant’s chances of a successful outcome.