To qualify for a U.S. green card, in most cases, you need to have entered the country lawfully. It’s important to understand what exactly “lawful entry” means. For immigrants that otherwise qualify for a green card but may have illegally worked in the U.S. or failed to maintain lawful status, being able to prove lawful entry is important.
Many people enter the country on a visa and overstay. This still qualifies as lawful entry and can help you qualify for a green card. If you have a relative that is a U.S. citizen or permanent resident, or is serving in the U.S. military, you may qualify for a waiver that allows you to immigrate to the United States.
Entering the country without documents and without receiving a visa or proof of your entry can sometimes qualify as lawful entry. Here’s an example.
You entered the country without a visa or other type of immigration document, maybe as a passenger in someone's car or walking through. In this case, the officer might have simply waved you in. You presented yourself for inspection and the officer admitted you into the country. Even though a formal inspection didn’t occur, under the law, this counts as lawful entry.The hard part in these cases is proving it. Without a I-94 Arrival/Departure Record, a stamp in your passport, or a visa, there isn’t any documented proof of your entry into the country. You will need to present secondary evidence in the form of declarations. This can be tricky and I would recommend you seek the advice of an attorney if this is your situation.
It’s also possible to qualify for lawful entry if you entered the country with fake documents, depending on the type of document you used and when you entered the country. Here’s an example.
You hire a notario who gives you a fake residency card and enter the country with it. The officer looks at the card, inspects it, and you are let into the country. This is an immigration violation and does have a punishment. But because you were inspected and admitted, it can still qualify as lawful entry and later allow you to lawfully immigrate to the United States.
However, consequences vary depending on what type of document you used and when you entered the country. If you in any way pretended to be a U.S. citizen—whether with a fake U.S. birth certificate, fake U.S. passport, or simply in an oral statement—then you committed a serious crime under immigration law. If this occurred after 1997, then there is no waiver and you may not qualify to immigrate to the United States. However, if it occurred before 1997, then you can request a waiver.
In this case, you will need to file the waiver to forgive the use of false immigration documents. This waiver can be filed at the same time as the immigration petition or later. In the current political climate, however, I would recommend filing everything together and having an immigration attorney help with your case.
If you have any questions about your entry into the United States, I'd be happy to help. I’m a dedicated and passionate immigration attorney, fluent in English and Spanish, located in the Los Angeles area. Call (310) 803-3040 or visit https://abaudlegal.com/appointment/ to schedule an appointment.
Time spent illegally in the U.S. can affect your green card application. If you accrued 180 days of unlawful presence or more, then you could be required to stay outside the United States for three to 10 years. Luckily, there is a solution.
The Provisional Waiver for Unlawful Presence is available to certain immigrant visa applicants who are spouses or parents of U.S. citizens and permanent residents. This waiver is not necessary for individuals immigrating in the United States, or applying for adjustment of status (I-485).
The I-601A Provisional Waiver is for individuals who do not qualify to apply for a green card from within the United States (adjustment of status). These applicants are required to travel abroad to their country of birth, citizenship or origin, to attend an interview at a U.S. embassy or consular office.
The I-601A waiver becomes necessary if you entered the U.S. without inspection or admission, and have accumulated more than 6 months to one year of unlawful presence in the United States. If you leave the United States to go to your interview abroad without an approved provisional waiver in hand, your case will be denied and you may be at risk of having to spend, at best, a few years outside the U.S. while waiting for a waiver to be approved abroad. In the worst case, you may have to spend over 10 years abroad.
The I-601A Provisional Waiver is a waiver that you apply for INSIDE the United States. It allows you to stay in the United States until your unlawful presence is forgiven or waived. The I-601A Provisional waiver waives the unlawful presence bar, allowing immigrants to continue the immigrant visa process without having to spend years apart from their families.
While you will be required to leave the country to attend your visa interview at a U.S. consulate or embassy, you only need to be gone for the interview and no longer. Without the waiver, you may be required to wait out an unlawful presence bar. The bar is three years if you depart the United States after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay. The bar is 10 years if you depart the United States after having accrued one year or more of unlawful presence during a single stay.
The Provisional Unlawful Presence Waiver doesn’t change the immigrant visa process. If you were not eligible to apply for a green card through adjustment of status (Form I-485) before the waiver was approved, it won’t change that fact. You will still be required to leave the country to process your immigrant visa at a U.S. embassy or consulate abroad.
To be eligible for an unlawful presence waiver, you must be an immediate relative of a U.S. citizen and otherwise meet the qualifications to apply for a U.S. green card card (permanent residence). You must also meet the following requirements:
Not all immediate relatives of U.S. citizens qualify for a Provisional Unlawful Presence Waiver. If you are in removal proceedings, it may be difficult to get approved for a waiver (but it is still possible). You may not qualify if you have a final order of removal, exclusion, or deportation. If you have a final order of removal, exclusion, or deportation, you can only seek a provisional unlawful presence waiver if you applied and were approved for Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
Moreover, you are not eligible for a 601A waiver if you are deemed inadmissible for any other grounds other than that of having accumulated unlawful presence. (Examples: crimes that make you inadmissible; health grounds; fraud, etc.)
To apply for a Provisional Unlawful Presence Waiver, you must complete the USCIS Form I-601A, Application for Provisional Unlawful Presence Waiver. You will need to include certain evidence that proves you are eligible. The required evidence depends on your basis for eligibility and your particular circumstances. All applicants must show that they have a U.S. citizen or permanent resident spouse or parent (qualifying relative) who would experience extreme hardship if they are refused admission to the United States.
The U.S. Citizenship and Immigration Services (USCIS) requires that you prove your absence from the United States will cause your U.S. citizen or permanent resident spouse or parent extreme hardship. To do this, you’ll need submit convincing evidence. A lawyer can help you compile this evidence and it’s good idea to get a lawyer’s advice due to the complexity and risk of this application.
If you have any questions about the Provisional Unlawful Presence Waiver or think you might be eligible, I'd be happy to help. I’m a dedicated and passionate immigration attorney, fluent in English and Spanish, located in the Los Angeles area. Call (310) 803-3040 or visit https://abaudlegal.com/appointment/ to schedule an appointment.