Determining eligibility for provisional unlawful presence waivers

The family member of a U.S. citizen in California who is in the country illegally must travel abroad to complete the immigrant visa process at the U.S. embassy or consulate of their home country. This process can cause a separation of years. Since March 2013, the U.S. Citizenship and Immigration Services have allowed certain people to apply for provisional unlawful presence waivers while they fulfill the requirements for immigrant visas abroad. If approved, this waiver significantly shortens the time that they must be away from their families.

These immigrant visa applicants are required to meet a number of criteria, including the following:

Must be in the United States while filing the application

• Must be at least 17 years of age
• Must be the spouse, child or parent of a U.S. citizen
• Must prove that the time away from the U.S. citizen will be an undue hardship on that citizen

By submitting the application, a person is admitting to unlawful residence. The USCIS does follow the guidelines in place by the Department of Homeland Security regarding removal proceedings. However, as long as there are not grounds of inadmissibility such as convictions, medical issues or current removal proceedings, the USCIS does not typically send applicants’ information to the Immigration and Customs Enforcement.

According to the Federal Register, a publication of the U.S. government, even if the application is pending or approved, the person still has a status of unlawful presence and does not receive any legal status or benefits such as a right to work. In addition, it does not guarantee receipt of an immigrant visa, and the applicant may still be removed from the country.