A noncitizen that has been unlawfully present in the United States for more than 180 days but less than a year, and then departs the United States, is inadmissible for 3 years. INA 212(a)(9)(B). An undocumented person who has been present in the United States for more than a year is inadmissible for 10 years. Id. However, if the noncitizen has a qualifying relative this person may apply for a provisional waiver in order to get an immigrant visa. Certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens or lawful permanent residents can apply for provisional unlawful presence waivers. The advantage is that the noncitizen does not have to leave the United States to get the waiver approved. If the waiver is approved, the noncitizen leaves the United States for the visa interview, but the noncitizen is no longer inadmissible, nor barred due to unlawful presence. This takes away the uncertainty of whether or not the noncitizen will be able to return unless there is another issue that affects admissibility.
In any case, a person who entered without inspection is admissible for adjustment of status in the United States so this person has to obtain the immigrant visa abroad. Distinctively, immediate relatives that entered lawfully as with a tourist visa but overstayed do not need to apply for the provisional waiver because they can adjust status in the United States.
It is important to note that the qualifying relative is a United States Citizen or lawful permanent resident spouse or parent. The provisional waiver does not allow any other qualifying relatives. However, the qualifying relative does not have to be the same person that filed the immigrant petition. For example: After entering without inspection, John has lived in the United States without status for many years. John’s 21-year-old son petitioned for him, and the I-130 was approved. John cannot apply for adjustment because he is inadmissible due to the unlawful entry, and if he leaves, he would trigger the unlawful presence bar. John’s mother is a lawful permanent resident. John can apply for the provisional waiver naming his mother as the qualifying relative.
After identifying the qualifying relative, the next step is demonstrating that the family member would endure extreme hardship if the waiver is denied. To prove extreme hardship the consequences of the denial must go beyond the normal consequences of inadmissibility.
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