Application Help with a Provisional Unlawful Presence Waiver in Arizona

Written by Diamondback Legal on April 1, 2023

The basic thing to be aware of is that if you stay in the US for at least 180 days without having a valid immigration status, you are subject to a three-year bar when you leave the country and apply to come back at some time in the future.

Those who stay in the USA for more than a year without lawful status will receive a 10-year inadmissibility bar. This triggers from the point where you apply to be admitted back into the United States at some other time.

In some cases, applicants can apply for and be granted a provisional unlawful presence waiver. This would allow you to come back to the United States sooner than the typical person would be entitled to. This is often used by people who wish to apply for residency or green cards.

However, as with all laws related to immigration, handling the process alone is not recommended. It’s easy to get something wrong and end up with a longer process or a final ruling that doesn’t meet your expectations. Having an experienced Arizona immigration attorney at your side will make the process smoother and increase your chances of being provided a waiver.

What to Know About Provisional Stateside Waivers in Arizona

A provisional waiver program was put into place on March 3, 2013. Known as an I-601A waiver or stateside waiver, this program offers new opportunities for immigrant families. The idea behind this waiver program is to let spouses of United State citizens apply for lawful permanent residency, or green cards, without needing to leave the country, which often involves being away from family for months or longer.

In addition to spouses, the waiver program can also be used by parents of adult citizens. However, there are some nuances between applying for the waiver as a spouse or as a parent. Your chosen Arizona immigration attorney can help you understand the differences and ensure you follow the correct process.

Provisional waivers are designed for those who came into the US “without inspection.” That means that someone comes into the country without papers. No immigration officer inspects and admits them, leading the person to have entered without an inspection process.

The three and 10-year bans mentioned earlier are levied on those who enter the country this way. However, many of those who enter the US without inspection do so when young. Perhaps later on, that person falls in love with someone who is a citizen of the US and marries. While they can apply for a green card because of their spouse, the law makes it more complicated.

Instead of being allowed to stay in the United States throughout this process, the person who entered without inspection will need to go back to their home country and wait for an appointment to speak with the US consulate. This is typically called consular processing.

How Does Accrued Unlawful Presence Work in Arizona?

Due to being in the country in an unlawful manner, the person above will also be barred from the country for three to 10 years. The only way to get past this and reenter the country sooner is through an unlawful presence waiver. Qualifying for this type of waiver requires the applicant to prove that not being able to return would create “extreme hardship” for their spouse or parent who is a US citizen.

Before the new waiver process was instated, a green card applicant could be left outside of the United States for up to a year. While this might seem excessive, it was also common. The consulates might schedule an interview for the green card, but also schedule another interview (up to a year later) to determine whether the unlawful presence waiver should be approved.

The reality is that the old system was a huge challenge. People would be separated from their loved ones for up to a year. In addition, they were left waiting to find out the result of the application until the final interview. It was nerve-wracking and emotionally difficult for many applicants.

The new system has made things a bit easier. An applicant can file for an unlawful presence waiver and receive a provisional acceptance or denial before the person needs to leave the USA and go back to their country of origin. If the provisional waiver is approved, the applicant may be away from the country for no more than a week before having the chance to return with a green card.

Keep in mind that the consulate can later choose to overturn the provisional approval of the waiver. However, this is unlikely to occur unless the applicant violated the law after submitting the application or lied on their waiver application. If those two things do not apply, there are unlikely to be problems at the final interview.

What Are the Eligibility Requirements for an I-601A Waiver?

Knowing whether you are eligible for a waiver is a good place to start when seeking citizenship in the United States. The following are required for the I-601A waiver:

You are required to leave the United States to access an immediate relative immigration visa.
You are currently in the United States.
You have a pending case with the US Department of State based on an approved petition and all processing fees have been handled.
You can show hardship to a US spouse if denied permanent residency status.
You are the beneficiary of an approved immediate relative petition.
Your only reason for being inadmissible is unlawful presence, such as with an expired visa.
You haven’t been convicted of at least two misdemeanors or one felony.

What Factors Are Considered for Extreme Hardship?

Proving extreme hardship is a big part of the process. There are many things that USCIS considers when deciding whether your situation applies. Some of them include:

Mental and physical health concerns
Financial Considerations
Educational opportunities
Personal considerations
Special factors

In a situation with LGBTQ couples, if the foreign spouse is from a country where this is stigmatized or persecuted, this is also important to share. Submitting information about potential mistreatment that might occur when going back to your home country can strengthen an application.

USCIS has discretion in who is granted a waiver request even if extreme hardship can be proven. You will need to submit a statement discussing the hardship and how you are tied to the United States. This might be evidence of good moral character, education in the US, community involvement, and family relationships.

Application Assistance Is Recommended

Even though the process of applying for a waiver is easier now and avoids some of the challenges of the past, that doesn’t mean it’s simple. Applying for a provisional waiver is a highly challenging task. This is why it’s recommended that nobody take on the task without at least speaking with an experienced Arizona immigration lawyer.

It might seem as if it’s all about filling out a few forms but it goes much deeper than that. The application isn’t only a simple document. It needs to be supplemented by documentation, information, and legal arguments to prove it meets the standard for extreme hardship.

In addition, think about how many waivers are sent in on an annual basis. Thousands of people overstay their visas and end up in the USA unlawfully. This can happen even when someone is married to a citizen of the country. When this occurs, the person cannot use adjustment of status to get their permanent residency.

It’s very important to be totally honest with your attorney before you get started with the unlawful presence waiver. If your lawyer doesn’t know important facts, such as past immigration history, certain medical conditions, or recreational marijuana use, this could lead to being denied.

Throughout the waiver process, there will be interviews involved with experts and other witnesses. All of your documents will also be reviewed in order to prove that extreme hardship will be created by you leaving the United States. Only an experienced attorney can guide you through all the steps and give you the best chance.

Some of the ways that an expert immigration attorney in Arizona can help include the following:

Listening to your story to better understand you and your specific situation
Answering any questions you have and advocating for you regardless of your grounds for inadmissibility or circumstances
Providing you with various legal options available for requesting the appropriate waiver
Determining where you’re eligible for a waiver request based on the reason for your inadmissibility
Putting together the appropriate form and providing evidence to request the waiver
Submitting the waiver to the right location based on your specific circumstances

Get Assistance with Your Provisional Unlawful Presence Waiver in Arizona

If you’re in a situation where you require a provisional unlawful presence waiver to stay in the United States, it’s important to have an excellent Arizona immigration attorney at your side. The best option is someone who has extensive expertise in immigration processes, petitions, and waivers.

Diamondback Legal provides dedicated attorneys who will fight for you throughout the process. We strive to represent all clients as we would want to be represented ourselves. If you’re ready to move forward with a provisional waiver, reach out to us for a free consultation.