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"Stay-At-Home" Unlawful Present Waivers Now Available for Lawful Permanent Resident (LPR)

We are all familiar with the fact that millions of people in the United States have entered the country illegally. The minute someone over 18 enters illegally, or turns 18 while here without status, he or she starts accruing so-called "unlawful presence" or "ULP." An accrual of more than 180 days ULP, but less than a year, means that when the individual "departs" the United States he or she cannot return for three years. Even worse, an accrual of more than one year's ULP results in the harsh penalty of not being able to return to the United States for 10 years if one "departs."

Entering the country illegally also means that, even if the foreign citizen marries an American he or she cannot "adjust status" (apply for a marriage-based permanent resident card while remaining in the United States) because the Immigration and Nationality Act ("INA") only affords that right to "immediate relatives" (spouses, parents and children) of citizens who were properly "inspected and admitted" at a port of entry to the United States.

The dilemma faced by countless foreign citizens who entered illegally, put down roots and married Americans, was therefore quite stark. The only other way to get a green card was to apply for a visa overseas, typically at a designated US consulate in foreign citizen's home country. And there lay the rub: by "departing" such an individual triggered one of the bars on admission and risked being marooned overseas for three or ten years!

The original "provisional unlawful presence waiver" instituted by the Obama Administration a number of years ago allowed a foreign citizen whose petitioner was a US citizen to have his or her waiver application "provisionally" decided while he or she stayed in the United States to see if there was sufficient "extreme hardship" before "departing" overseas and triggering the 3 or ten year bar. If the provisional waiver was denied while the foreign citizen was in the United States, there would be no bar because the foreign citizen had not physically "departed" the country. If the waiver was granted, only a short trip overseas to apply for a visa was required in most cases.

The new rule, effective August 29, 2016, expands eligibility to apply for a provisional waiver to foreign citizens whose petitioners are LPRs. Now, spouses of LPRs can take advantage of the same provisions, though unlike those married to citizens they still have to wait for their visa "priority date" to come due. While this may seem like a very "policy wonk" point, it isn't if an LPR has difficulty applying for citizenship due to disability, or other reason. I have a number of such clients.

I am happy that the law has expanded administratively so that other deserving families can remain together and all be "legal" here in the United States.

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