Foreign nationals who enter the United States without a visa or without inspection may not seek permanent residence from within the United States. Instead, they must leave the United States to obtain an immigrant visa at a consulate abroad and are usually barred from reentering the U.S. for three or ten years. Foreign nationals who are unlawfully preset must obtain a waiver before they can apply for an immigrant visa and re-enter the United States.
To qualify for a provisional waiver, they must prove that their qualifying relative – a U.S. citizen or permanent resident spouse or parent – would suffer “extreme hardship” if they were not allowed to return to the United States. Children are not considered qualifying relatives.
The applicant must submit Form I-601A, with supporting documents and filing fee to the USCIS. Separation from a qualifying relative is not sufficient to show extreme hardship. The application must present additional factors that rise to the level of extreme hardship, such as a serious medical condition, personal circumstances (caring for the spouse’s elderly or ill relative), the spouse’s financial dependence on the foreign national, and problems in the foreign national’s home country that would make it extremely difficult for the foreign national and the petitioning relative to relocate there.
First Step- I-130 Petition
The first step in the immigration process is for the U.S.citizen or lawful permanent resident petitioner to submit a visa petition to USCIS on Form I-130. This step takes about 6-9 months.
USCIS will, upon approving the I-130, transfer the file to the National Visa Center (NVC) for further action and transfer to the consulate. The NVC will schedule your immigrant visa interview only after USCIS has made a decision on your provisional waiver application.
Second Step- I-601A Provisional Waiver Application
After your I-130 has been approved can you file your provisional waiver application. Application is filed with the USCIS. The application should include the I-130 approval notice, proof of your relationship to your qualifying relative, documents showing that your qualifying relatives would suffer extreme hardship if you were denied the U.S.visa, and receipts showing that you paid the DOS-required immigrant visa processing fees.
Third Step- Immigrant Visa Interview at the Consulate Abroad
After your case has been approved you need to attend the interview in your home country. This is the same procedure every green card applicant goes through.
The National Visa Center (NVC) will collect the required documents and you will be scheduled for an interview at the U.S. consulate in your home country.
Once the I-601A is approved, your case will be first transferred to the National Visa Center (NVC), and you will be required to provide additional documents as well as an affidavit of support.
After the National Visa Center is satisfied with all the documents and fees you have submitted, the petition will be forwarded to the United States Consulate having jurisdiction over your foreign relative’s residence abroad. Thereafter, the Consulate will notify you and summon your relative for an interview for permanent residence accordingly.
After you attend your interview, the consulate will process your case and grant or deny your visa. If your visa is granted, you will return to the United States and be granted legal permanent residency upon your arrival. Your actual green card will arrive some weeks later.
To learn more about your options contact our San Francisco law firm to speak with one of our immigration attorneys.