I-601 Waiver for Unlawful Presence

December 15, 2017 10:34 am
by David Jakeman

Unlawful presence is just like what it sounds – time spent in the country without official authorization. Under certain circumstances, and without a waiver, unlawful presence can prevent you from having a positive outcome for your immigration application, so do your homework!

Ways of Accruing Unlawful Presence

You can accrue unlawful presence in various ways, like coming across the border without permission or staying longer than your visa gave you permission for. Maybe you have remained in the United States after a judge ordered you removed or maybe you neglected to remove the conditions on your conditional residency after it expired. Unlawful presence counts starting April 1, 1997, when IIRIRA was passed.

Triggering the Bar for Unlawful Presence

Unlawful presence becomes a problem only if you leave the country. Upon departure, you trigger a bar that will prevent you from legally returning for years. This is even true if you are going abroad for a consular interview as part of the process for adjusting your status. How long you are prohibited from returning depends on how long you were unlawfully present.
If you have spent between 180 consecutive days up to one year unlawfully present in the US and then left voluntarily, you can’t apply to come back for 3 years. If you spent, in total, more than 1 year unlawfully present in the US, even if the time was broken into various visits, you cannot apply to return for 10 years. In this case, it doesn’t matter if you left voluntarily or if you were ordered removed by an immigration official.

And under some circumstances, like if you’ve illegally re-entered the country after being deported, you are permanently barred from the country. The I-601 waiver doesn’t apply.
The good news is that the bars only apply if you leave, even if you have accrued a lot of time unlawfully present. Of course, in order to adjust your status, you must meet the specific requirements for your particular application. A good immigration lawyer will help you know what else you need in your particular case.

Waiver for Unlawful Presence

So what happens if you trigger the 3-year or 10-year bar? All is not lost! You can request an I-601 Waiver for Unlawful Presence. In order to submit the waiver, you must have a qualifying relative. In this case, a qualifying relative is a US citizen or LPR (green-card holding) spouse or parent. Unfortunately, children do not qualify.
If you have a qualifying relative, you must prove that your relative will suffer extreme hardship by your absence. Extreme hardship is more than just the common consequences of being denied admission to the US. You must prove that your qualifying relative would suffer above and beyond the regular disruptions. Immigration officials look at a number of factors to determine extreme hardship. They are instructed to look at the overall, or cumulative, effect of being denied admission. Perhaps no one factor is enough to prove extreme hardship, but when taken all together, you can prove extreme hardship.1

Extreme Hardship Factors

Immigration officials look at the impact your absence would have on your qualifying relative, including caregiving responsibilities, age, or length of residence. Your relative might be unable to find an adequate replacement caregiver in your absence. They might suffer emotionally, physically, or socially because you can’t be there.
Another area of emphasis is how leaving the US might affect your qualifying relative socially and culturally. Perhaps your relative can’t speak the language very well, or they’re so Americanized that they would struggle to fit in. Maybe they would lose access to the US judicial system or social services. Your relative’s job or educational opportunities might be a serious concern.

The economic impact of separation or departure also factors in to an extreme hardship waiver. Perhaps if you leave your relative’s standard of living would plummet, they would have to sell off assets, or quit their profession. Maybe childcare expenses would be too big a burden.

Health care also factors into a determination of extreme hardship. Inadequate health care facilities abroad matter. Your relative might be psychologically affected by your absence or by leaving the US to be with you. Perhaps the strain of worrying about you while you’re abroad impacts their health.

USCIS will also take into account the conditions of the country. If you can provide evidence of unrest and turmoil, that will help your application. Reports of danger pay for US government workers in the country, the withdrawal of humanitarian organizations, State Department travel warnings, or a Temporary Protected Status designation for that country will all help prove extreme hardship for your relative.

Because a determination of extreme hardship is so circumstance dependent, make sure to consult with the best immigration lawyer you can find to help you make your best case. In addition, if you haven’t left the country but you’re thinking of leaving for some reason, check out the provisional I-601A waiver. That will prevent you from triggering the bar before you go.

Check out Concepcion’s story about how she used an I-601 waiver to return to her family with the help of our best immigration lawyers in Seattle.

1 – https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartB-Chapter5.html
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