A client came to our office to assist her husband of many years. The couple had children, good jobs, and had been together for many years. The wife (a U.S. Citizen) wanted to file for her husband (from El Salvador) who had entered with U.S. “EWI” many years before, but had never been caught by U.S. Immigration. The couple had never seen a lawyer before and did not know what to do or where to begin.
A person who enters the U.S. “EWI” is one who “entered without inspection.” This means that they were not seen or admitted by U.S. Immigration Officials at the border. This is very important since someone who is EWI is not eligible to seek “adjustment of status” within the U.S. (except for certain exceptions). This code section is contained at: INA Sec. 212(a)(6)(A):
(A) ALIENS PRESENT WITHOUT admission or parole.
(i) In general.-An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
(ii) Exception for certain battered women and children.-Clause (hall not apply to an alien who demonstrates that-
(I) the alien is a VAWA self-petitioner;
(II)(II)(a) the alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the spouse’s or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty, or (b) the alien’s child has been battered or subjected to extreme cruelty by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty) or by a member of the spouse’s or parent’s family residing in the same household as the alien when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, and
(III) there was a substantial connection between the battery or cruelty described in subclause (I) or (II) and the alien’s unlawful entry into the United States.
If a person is present in the U.S. pursuant to an entry “EWI”, they must return abroad to seek a visa before they can be granted U.S. Lawful Permanent Residence (except in certain circumstances).
In addition, when a person is in the U.S. Illegally for a period of time, they accrue “unlawful presence.” Under INA Sec. 212(a)(9)(B)(i), a person who is unlawfully present for a period of 180 days but less than 1 year is subject to a three year bar when they leave the U.S. If you remain more than one year, you are subject to aten year bar and cannot return to the U.S. without seeking special permission.
Fortunately, there is a waiver available to U.S. Citizens and U.S. Lawful Permanent Residents petitioning for some of their relatives. USCIS says the following regarding this:
Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. Foreign nationals who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. Typically, these foreign nationals cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.
The provisional unlawful presence waiver process allows immediate relatives who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview.
This new process was developed to shorten the time that U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.
Examining the case, Mr. Miller quickly determined that this case required filing both a Form I-130, Petition for Alien relative and a Form I-601A, Provisional Unlawful Presence Waiver. He met with the clients and collected information regarding the “extreme hardship” that the family would suffer if the case was not approved. After weeks of work, the application was submitted to USCIS for approval. After a few months, the case was approved. The client returned to El Salvador and obtained his U.S. Lawful Permanent Residence.
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