Individuals who may otherwise be eligible for permanent residency in the United States can find themselves in a situation where the immigration system places a bar or ban on their eligibility to enter the U.S. This often happens to immigrants who accrue unlawful presence and then leave the U.S. Those who have less than a year (but more than six months) of unlawful presence and then leave will have a 3-year bar. Others who have a year or more of unlawful presence and leave will trigger the 10-year bar.

Waiver of the The Three or Ten Year Bar

There is a waiver available to forgive the unlawful presence bars. You will want an experienced immigration attorney to help you through it. To request the waiver, you must prove that you have a lawful permanent resident or US citizen spouse or parent, who would suffer “extreme hardship” if your case is denied. If an immigrant is approved for this type of waiver, they can re-enter the U.S. despite their 3 or 10 year bars.

A Look at the Waiver Process

There are two main processes for filing for a waiver. A standard waiverI-601 and the provisional waiver I-601a. Below, we will discuss how these are processed in the immigration system.

  • The Standard Waiver I-601 – When the immigrant leaves the U.S. and triggers the 3-or-10 year bar on re-entry. If they have a spouse or parent who is a US Citizen or LPR who will experience “extreme hardship,” the immigrant may qualify for a waiver. The immigrant will need to stay out of the country while they await the waiver process which can take about seven or eight months. When a result has been reached, the immigrant will be asked to offer more documents or attend another interview to ensure eligibility for re-entry to the U.S.
  • The Provisional Waiver I-601A – This waiver can be applied for in advance, unlike the I-601 standard waiver. This waiver aims to significantly reduce the out of country wait time for an immigrant so as not to uproot or displace other family members during the waiver processing time. This waiver allows the immigrant to wait for the waiver within the U.S. and only travel outside of the U.S. for a few days or weeks when the interview at the consulate is requested – and only after the waiver is approved.

Limitations to the Provisional Waiver Program

  • The I-601A waiver covers unlawful presence only. This doesn’t include criminal, misrepresentation or other waivers of inadmissibility. (The I-601, in contrast, can waive more legal issues).
  • The I-601A waiver has to be filed while in the U.S., it cannot be applied for while living abroad.
  • A waiver cannot be applied for by those who have removal orders unless the immigrant has qualified for an I-212 advance permission to reenter.

If you need help with the three or ten-year waiver, please contact Landerholm Immigration today and speak with an immigration lawyer or green card attorney. Our team is here to help you!