Waiver based on Unlawful Presence
Unlawful presence is the most common ground of inadmissibility for which waiver applications are filed. If you accumulated unlawful presence in the United States and are subject to the three-year or ten-year bar upon departure and attempted reentry, you may qualify to file a waiver application if you have a U.S. citizen or lawful permanent resident spouse, fiancé, or parent who will experience “extreme” hardship if you are denied admission. You cannot apply for this waiver on the basis of having a U.S. citizen or lawful permanent resident child.
The most difficult part of submitting a waiver application for unlawful presence is demonstrating potential extreme hardship to your qualifying U.S. relative. Extreme hardship is not defined in the I.N.A., but it is generally understood to mean hardship that is greater than the normal hardship a qualifying relative can be expected to experience if you are denied admission. This vague definition means that there is no right or wrong answer. However, it also means that the officer reviewing your case has broad discretion in deciding whether or not your relative’s circumstances constitutes extreme hardship.
There are two options for applying for this waiver. Some applicants, who are immediate relatives of U.S. citizens and can show extreme hardship to a U.S. citizen spouse or parent, can apply for a “provisional waiver” (or “stateside” waiver) on Form I-601A before departing the U.S. for their consular interview. The principal benefit of this option is that it reduces the risk of being stuck outside the U.S. for three or ten years if the application is denied. Applicants who don’t qualify for a provisional waiver (such as spouses of U.S. permanent residents and siblings of U.S. citizens) will need to apply for the traditional I-601 waiver.