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Immigration Waiver Lawyer in Jacksonville

Provisional Unlawful Presence Waiver

First enacted in 2013, and expanded in 2016, the unlawful presence waiver waives an applicant’s unlawful presence in the U.S. if they are able to demonstrate that their qualifying relative would suffer extreme hardship if the waiver were not approved. Unlawful presence happens when a foreign national enters the U.S. unlawfully or when their lawful status ends. When the applicant is present in the U.S. for more than 180 days but less than one year, they will be inadmissible for 3 years. If they were present in the U.S. for more than one year, they will be inadmissible for ten years. The unlawful presence ground of inadmissibility is found at INA §212(a)(9)(B) and is triggered when a person departs the U.S. The three and ten year bars begin to run when the person departs the U.S., and may be waived via the unlawful presence waiver. 

Previous to 2013, the waiver could only be applied for from outside of the U.S., and applicants who had triggered the three or ten year bar were required to wait outside of the U.S., separated from their families and uncertain if their waiver would ultimately be approved. The waiver has therefore become one of the most critical tools for assisting applicants who are eligible for an immigrant visa, with the exception of having entered the U.S. unlawfully. 

Significantly, the provisional waiver only waives unlawful presence. The waiver is only available to applicants inside the U.S. who are the spouse, son, or daughter, of a U.S. Citizen or Lawful Permanent Resident. The provisional waiver is for visa applicants who will be consular processing (attending their visa interview overseas), allowing them to apply for the waiver before leaving the U.S. and waiting in the U.S. for a decision on the waiver, lessening the time they will be separated from their families. As approval of the provisional waiver only waives inadmissibility for unlawful presence, the waiver may be rejected at the consular interview if a consular officer determines the applicant is inadmissible for additional reasons. It is therefore essential to have your case prepared by an experienced immigration attorney and to disclose any and all potential grounds of inadmissibility to your attorney prior to applying for the waiver.

Extreme hardship is hardship greater than that which would typically be experienced by an applicant facing separation from their loved one. In demonstrating hardship, it may be helpful to explain both why the qualifying relative cannot remain in the U.S. without the applicant without experiencing significant hardship and also why the qualifying relative would suffer extreme hardship if they were forced to reside with the applicant abroad in order to keep their family together. Medical hardship, educational hardship, economic hardship, and psychological hardship to the qualifying relative may all be considered. A failure to demonstrate extreme hardship is one of the most common reasons for unlawful presence waivers to be denied. Once denied, there is no appeal or motion to reopen process available, however a new provisional waiver request may be an option. Our office has extensive experience preparing successful provisional waivers.

Get started with our experienced team today. Call us at (904) 590-2689 to request a consultation.

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Inadmissibility for Crimes

A conviction for certain crimes, and in some cases simply an admission, will trigger the criminal grounds of inadmissibility at INA §212(a)(2). Drug offenses, prostitution, and crimes involving moral turpitude (CIMT) are the most common crimes triggering inadmissibility under this ground. If you have any criminal arrest or conviction, it is imperative you consult with an immigration attorney before filing an application with immigration as a conviction, even a very old one, may make you inadmissible, or subject you to deportation. 

Petty Offense Exception – This exception holds that an applicant is not inadmissible where they were convicted of a single CIMT, for which the maximum possible sentence is not greater than one year, and the applicant was actually sentenced to six months or less incarceration. 

Waivers are available for most CIMTs, for prostitution, and for simple possession of marijuana less than 30 grams. To qualify for a waiver of these grounds, the applicant must be one of the following:

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