Provisional Unlawful Presence Waivers of Inadmissibility
Individuals who entered the U.S. without being admitted or paroled are not eligible to adjust status, regardless of whether they are married to a USC. These individuals must leave the U.S. and pursue an immigrant visa through consular processing. There are waivers available for spouses of US Citizens and Legal Permanent Resident who can show that refusal of admission of the immigrant would result in extreme hardship to the immigrant’s USC or LPR spouse or parent. Until recently, the only way to obtain an unlawful presence waiver was to apply from outside the United States in the course of consular.
However, a new rule, effective March 4, 2013, permits immediate relatives of USCs (but not LPRs) to request a provisional unlawful presence waiver prior to travelling abroad for consular processing. To qualify for a waiver of unlawful presence, the applicant must demonstrate extreme hardship to his USC spouse or parent. Like other waivers, hardship to a USC spouse or parent may include evidence of age, family ties in the United States (and lack of ties abroad), length of time spent in the United States, health/medical conditions, economic and financial conditions, etc.