Monday, July 14, 2008 Reeves: Unlawful presence and waivers By Robert L. Reeves
ILLEGAL presence in the United States (US) can af-fect a person’s ability to obtain permanent residence in the US or obtain an immigrant visa at a consulate or embassy abroad.
People who entered the US lawfully on a visa, but who are now here unlawfully because they overstayed that visa, can obtain a green card without traveling to a foreign country, obtaining a waiver or paying a fine if they are the spouse, minor child, or parent of an adult United States citizen or are considered to be a special immigrant.
People unlawfully present in this country, who do not fit within the above-referenced category, can also obtain a green card if a family based visa petition or an employment based labor certification was filed for them on or before April 30, 2001, provided they pay a $1,000 fine.
However, all other people unlawfully present in the United States will need to return to a consulate or embassy abroad in order to obtain a green card. If those people have remained in the US for an extended period illegally, they will be required to be eligible for and be granted a waiver from the United States Citizenship and Immigration Services (USCIS) before reentering.
A person who has been residing in the US unlawfully for more than 180 days but less than one year is barred from reentering the United States for a period of three years unless they obtain a waiver. And if such a person has been residing in the United States unlawfully for a year or more, they are barred from reentering for 10 years unless a wai-ver is obtained.
It is important to note that people who resided unlawfully in the United States for a year or more and who departed the United States, must continue to remain outside the United States until a waiver is granted. If they depart the United States and attempt to reenter or succeed in reentering the United States illegally thereafter without obtaining a waiver first, they will no longer be eligible for a green card or a waiver until they have resided outside the United States for 10 years.
The waiver for previous unlawful presence is available only to those people who have a United States citizen or lawful permanent resident spouse and/or a United States citizen or lawful permanent resident parent.
Furthermore, to be eligible for the waiver, the applicant must establish that his or her relatives will suffer extreme hardship if he/she cannot re-enter the United States before the three- or 10-year period has passed.
It is very difficult to obtain a waiver from the USCIS offices abroad because the government applies a narrow view of what constitutes extreme hardship.
But waivers are obtainable through the help of an immigration attorney who is an expert in this area of the law. This is no time to try a do-it-yourself waiver.
The consequences are far too severe.
Due to the difficulties associated with drafting an approvable waiver and the possible 10-year wait outside the United States that one will face, it is necessary for someone with unlawful presence in the United States to consult with and obtain the assistance of an immigration expert before applying for an immigrant visa.
