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Are there protections for people who have overstayed their visa while seeking a green card?

Even green card-seekers who already have an approved alien relative petition may still have an immigration problem if they have overstayed their visas or illegally entered the United States before or while waiting for a green card. This situation is also known as “unlawful presence,” and it makes the application process more difficult and more likely to be denied.

Immigrants in this situation may want to apply for a waiver to excuse the unlawful presence. In the past, immigrants first had to interview at the consulate or U.S. embassy in their home countries for the green card application. In the case of an unlawful presence, the immigration officer would deny the application. These immigrants would be allowed to apply for the waiver.
This process could take weeks or months and if the waiver was denied, could result in being banned from entering the U.S. for 3 or 10 years.

Since August 2016, some people may be eligible for a provisional waiver. The person applying for the waiver must be the spouse or child of a citizen or green card holder and at least 17 years old. They cannot be in removal proceedings. The only reason for denying their green card application is the unlawful presence. Finally, the applicant must prove that it would be an extreme hardship for the citizen or green card holder to live without the applicant or to relocate with the applicant.

Immigrants may apply for the waiver while in the U.S., even if they are unsure all the requirements are met. This way, they will know if their waiver applications are approved before needing to leave the country. If a waiver is approved, the process for getting a green card is much easier. However, it still requires returning to a person’s home country and interviewing with the consulate. Although the U.S. will initially deny the application, the waiver will allow the person to receive a green card.

This article was written by Cory Stevenson and appeared in The Alert: Volume 33, Issue 2. Click here to read a full PDF of this issue!

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