The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) created a harsh rule that affects many United States citizens and their undocumented spouses. Section 212(a)(9)(B) of the Immigration and Nationality Act bars anyone who resided in the United States illegally from reentering the country for a period of time. If an individual resided in the country illegally for 6 months to 1 year they are barred from reentering the Unites States for 3 years. If an individual resided in the country illegally for more than 1 year they are barred from reentering the United Stats for 10 years.
The 3/10 year bar poses a substantial obstacle to receiving a green card for immediate relatives (spouses, parents) of United States citizens who entered the country without inspection. Those undocumented spouses and parents of United States citizens will need to pursue consular processing to gain lawful permanent residence (aka a green card). Accordingly, they will need to leave the United States for their visa interview. However, if they resided in the country illegally for more than 6 months the 3/10 year bar will apply upon their departure from the United States. In essence, the very act of leaving the United States which is required for consular processing will trigger the bar to re-entry. Without an approved I-601A provisional unlawful presence waiver in effect the immigrant relative will be denied a visa during the interview and barred from re-entry. While outside the United States a waiver to the bar must be filed and approved before re-entry, a process that can take several months during which time the United States citizen and their spouse or parent will be separated.
Alternatively, the I-601A provisional unlawful presence waiver can avoid the unfortunate circumstance described above. The purpose of an I-601A unlawful presence waiver is to avoid the several months of separation inherent in the above situation. While the undocumented immediate relative of the United States citizen remains in the U.S. the unlawful presence waiver can be filed and approved. Once approved the immediate relative can depart the U.S. with a considerable degree of certainty that they can re-enter the United States absent other circumstances that would prohibit re-entry.
To learn more about filing an I-601A provisional unlawful presence waiver in the greater Sacramento area call immigration attorney Agxibel Barajas at (916) 800-1061.