The Illegal Immigration and Reform and Immigrant Responsibility Act (IIRAIRA) enacted in September 1996 provides that an alien who resides unlawfully in the United States for 180 days or more but less than a year after April 1, 1997, is inadmissible for 3 years if he/she subsequently leaves the USA and reenter legally or attempt to reenter legally. If an alien who has resided unlawfully in the United States for one year or more after April 1, 1997, is inadmissible for 10 years if he or she subsequently leaves the USA and reenter legally or attempt to reenter legally.
If an applicant is pursuing an immigrant visa at the consulate and is subject to the 3- or 10-year bar, the applicant will need to have an I-601 waiver granted to clear the bar. Typically it can take up to 30 months or longer to get a decision on the I-601 waiver application. During this time the applicant must remain outside the USA until the immigrant visa process is completed.
Fortunately, as of March 4, 2013, certain immigrant visa applicants, subject to the 3 or 10 year bar, who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for an I-601A provisional unlawful presence waiver in the USA. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver and wait for the decision in the United States rather than having to wait in their home country. If the I-601A waiver is approved then the applicant can proceed with the interview at the consulate. In order to get the I601A provisional waiver approved, the applicant will have to demonstrate that either a U.S. citizen spouse or parent will suffer extreme hardship if the applicant is not allowed to remain in the USA. The downside is it’s currently taking almost 4 years to receive a decision on the I-601A waiver application.
The Law Offices of Raul Ray will be happy to consult with you to determine whether you are eligible to apply for the I-601A waiver in the USA or if you have to go through the regular I-601 waiver process while remaining outside the USA. You can contact our office at (408) 279-5793.