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Seeking a provisional waiver of unlawful presence

If you are in the United States unlawfully, you may think this prevents you from fulfilling your dream of obtaining your green card. Your spouse may be a U.S. citizen or legal permanent resident, but your unlawful status is a barrier to you. This is because you must apply for your immigrant visa from outside the United States. However, if you leave the country, the ban imposed due to your unlawful presence takes effect.

If you have been in the United States illegally for longer than 180 days, immigration law temporarily bars you from reentry once you leave. This means you will spend at least three years -- possibly 10 -- separated from your family before you can begin the process of obtaining your green card and returning to the country. However, you may be eligible for a waiver of this ban.

How does it work?

A law passed in 2013 allows a provisional waiver for people for whom their unlawful presence is the only factor preventing them from receiving an immigrant visa. The waiver does not exempt you from any other aspect of the immigration process and does not alter your eligibility in any other way. The following information may help you navigate the process of obtaining a waiver:

  • You must be an immediate relative of a U.S. citizen -- that is, a child, parent or spouse age 17 years or older who is already in the process of obtaining a visa.
  • You must apply for a provisional unlawful presence waiver with the immigration agency.
  • You must be able to prove that a ban on your return to the U.S. presents a hardship to your U.S. citizen or LPR immediate family member.
  • You must leave the United States and attend your appointment at a U.S. embassy or consulate for your visa interview.
  • At the interview, a Department of State officer will make a determination about your eligibility for the waiver.

If you meet all of the requirements for a waiver, you may return to the U.S. within months -- maybe days -- instead of years. Of course, immigration issues in this country are tenuous, and seeking a waiver for unlawful presence is understandably risky. For this reason, you may benefit from the assistance of a Texas attorney who is dedicated to advocating for those facing immigration issues.

If you are already in the removal process, you would do well to seek legal advice. There are steps you can take that may administratively halt the removal process, and legal advocacy will improve your chances of achieving this.

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Trevino Immigration Law | 206 E. Locust Street | San Antonio, TX 78212 | Toll Free: 877-464-5593 | Phone: 210-544-5105 | Fax: 210-568-4649 | San Antonio Law Office Map

Trevino Immigration Law, 206 E. Locust Street, San Antonio, TX 78212