Consular Processing
If a foreign national with an approved Immigrant Visa Petition (I-130, I-360, I-140) or selected to participate in the Diversity Visa Program is unable to apply for adjustment of status from within the United States, the foreign national must apply for an immigrant visa at a U.S. Consulate or embassy outside the United States.
The three and ten-year bars to admission
Foreign nationals are inadmissible to the United States Per INA 212 (A)(9)(B) (i) who:
“(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244 (e) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien’s departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States is inadmissible.”
Form I-601 Application for waiver of the grounds of inadmissibility
The immigrant visa will be denied if the consular officer finds the foreign national to be inadmissible to the United States for any reason. If there is a waiver available for the particular ground or grounds under which the visa is denied and the foreign national is eligible to apply for such a waiver, the foreign national may file a Form I-601, Application for waiver of the grounds of inadmissibility. The foreign national is required to remain outside the United States until the waiver is adjudicated. If an immigrant visa is denied based on inadmissibility for unlawful presence the foreign national will not be issued an immigrant visa for either three or ten years unless a waiver is obtained.
Waiver of unlawful presence
Per INA 212 (A)(9)(B)(v)
“Waiver.-The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.”
Note: A foreign national cannot apply for a waiver of unlawful presence based on hardship to their son or daughter.
Form I-601 A Provisional waiver
A foreign national that is inadmissible solely based on unlawful presence may apply for a provisional waiver while in the United States and may remain in the United States while USCIS adjudicates the waiver. The foreign national must establish extreme hardship would be caused to U.S. Citizen or LPR spouse or parent if the waiver is not granted. After the provisional waiver is approved NVC will schedule an immigrant visa interview at the consulate or embassy.
Per 8 CFR 212.7 (e)(3) to be eligible for a provisional waiver the foreign national must:
“(i) Is present in the United States at the time of filing the application for a provisional unlawful presence waiver;
(ii) Provides biometrics to USCIS at a location in the United States designated by USCIS;
(iii) Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview;
(iv) Has a case pending with the Department of State, based on:
(A) An approved immigrant visa petition, for which the Department of State immigrant visa processing fee has been paid; or
(B) Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Act for the fiscal year for which the alien registered;
(v) Will depart from the United States to obtain the immigrant visa; and
(vi) Meets the requirements for a waiver provided in section 212(a)(9)(B)(v) of the Act. “
Per 8 CFR 212.7 (e)(4) a provisional waiver cannot be granted if:
“(i) The alien is under the age of 17;
(ii) …
(iii) The alien is in removal proceedings, in which no final order has been entered, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the application for a provisional unlawful presence waiver;
(iv) The alien is subject to an administratively final order of removal, deportation, or exclusion under any provision of law (including an in absentia order under section 240(b)(5) of the Act), unless the alien has already filed and USCIS has already granted, before the alien applies for a provisional unlawful presence waiver under 8 CFR 212.7(e), an application for consent to reapply for admission under section 212(a)(9)(A)(iii) of the Act and 8 CFR 212.2(j);
(v) CBP or ICE, after service of notice under 8 CFR 241.8, has reinstated a prior order of removal under section 241(a)(5) of the Act. either before the filing of the provisional unlawful presence waiver application or while the provisional unlawful presence waiver application is pending; or
(vi) The alien has a pending application with USCIS for lawful permanent resident status.”
Unlawful Presence
Foreign national generally start to gather unlawful presence when they enter the U.S. without being inspected by a CBP, have stayed beyond the period of time they have been authorized to stay or in some cases have violated their status.
Per INA 212 (A)(9)(B)(ii)
“Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.“
When does a foreign national not gather unlawful presence?
Per INA 212 (A)(9)(B)(iii)
Exceptions.-
(I) Minors.-No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i).
(II) Asylees.-No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.
(III) Family unity.-No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (i).
(IV) Battered women and children.-Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if “violation of the terms of the alien’s nonimmigrant visa” were substituted for “unlawful entry into the United States” in subclause (III) of that paragraph.
(V) VICTIMS OF A SEVERE FORM OF TRAFFICKING IN PERSONS- Clause (i) shall not apply to an alien who demonstrates that the severe form of trafficking (as that term is defined in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102)) was at least one central reason for the alien’s unlawful presence in the United States.
Per INA 212 (A)(9)(B)(iv)
Tolling for good cause.-In the case of an alien who-
(I) has been lawfully admitted or paroled into the United States,
(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and
(III) has not been employed without authorization in the United States before or during the pendency of such application, the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.
Note the above section only provides a 120-day tolling in regard to the three-year bar it does not apply to the ten-year bar.
Note:
In addition to the above certain foreign nationals are not considered to gather unlawful presence per the Adjudicators field manual at Section 40.9. As the contents of the Adjudicators field manual are based on policy they are subject to change at short notice.
Extreme hardship
A foreign national must establish extreme hardship would be caused to a qualifying relative (U.S. Citizen or LPR spouse or parent) if the waiver is not granted. ‘Extreme hardship’ has not been defined by statute.
Per USCIS Policy Manual Vol 9. Part B Ch 2
“USCIS recognizes that at least some degree of hardship to qualifying relatives exists in most, if not all, cases in which individuals with the requisite relationships are denied admission. Importantly, to be considered “extreme,” the hardship must exceed that which is usual or expected. But extreme hardship need not be unique”
The Board of Immigration Appeals (BIA) has held that the common consequences of denying admission include, but are not limited to, the following:
•Family separation;
•Economic detriment;
•Difficulties of readjusting to life in the new country;
•The quality and availability of educational opportunities abroad;
•Inferior quality of medical services and facilities; and
•Ability to pursue a chosen employment abroad.
But per USCIS Policy Manual Vol 9. Part B Ch 4
“those hardships ordinarily associated with deportation, . . . while not alone sufficient to constitute extreme hardship, are considered in the assessment of aggregate hardship.”
and,
“An applicant may show that extreme hardship to a qualifying relative would result from both separation and relocation. However, an applicant is not required to show extreme hardship under both scenarios. An applicant may submit evidence demonstrating which of the 2 scenarios would result from a denial of admission and may establish extreme hardship to one or more qualifying relatives by showing that either relocation or separation would result in extreme hardship.”
and,
“if the applicant claims hardship to an individual who is not a qualifying relative for purposes of the relevant waiver, the officer should consider the alleged hardship only as it affects one or more qualifying relatives.”
Examples of factors to consider:
- Duration of life in the United States.
- Age at entry into the U.S.
- Focus on the cumulative effect of various hardship factors.
- Family ties in the United States and in the home country.
- Age of children
- The number of children.
- The ability of children to speak, read and write the language.
- health – effect on health if adequate medical care is not available.
- raising children as a single parent
- Seperation from sick or elderly qualifying relative.
- financial – business or employment
- social/cultural
- economic, social and political country conditions
- Show how hardship to a non-qualifying relative will cause hardship to the qualifying relative. (ensure evidence is provided of the relationship to the non-qualifying relative)
- Psychological factors such as PTSD, depression etc.
- disruption of education
- Contribution to the community in the U.S.
Factors that may be particularly significant:
- Qualifying Relative Previously Granted Iraqi or Afghan Special Immigrant Status, T Nonimmigrant Status, or Asylum or Refugee Status if they have to relocate to the country from which received protection.
- Qualifying Relative or Related Family Member’s Disability.
- Qualifying Relative’s Military Service.
- DOS Travel Warnings concerning the country of relocation.
- Substantial Displacement of Care of Applicant’s Children