WAIVERS
NON-IMMIGRANTS & IMMIGRANTS
NON-IMMIGRANTS
A non-U.S. citizen applying for an extension
of status or change of status will be considered
to be here legally until a decision is made
regarding the application, as long as, the
applicant did not perform work without authorization,
and the applicant files a legitimate and
timely case. The clock on unlawful presence,
giving rise to issues of being barred from
the country, does not begin until a determination
is made, even if the government takes more
than 120 days (this rule will be discussed
below) to decide the case. Now, if the case
is denied, the unlawful presence of a non-citizen
will be deemed to have begun on the expiration
date of the last I94 the non-citizen completed,
but this will only happen if the case filed
by the non-citizen is frivolous, untimely,
or if the non-citizen worked without authorization.
If none of those three things are applicable,
the non-citizen may depart during the change
of status or adjustment of status without
being subject to the three and ten year
bars.
People with an F or J visa (student visas)
often have D/S or “Duration of Status”
stamp on their visa. Persons in this category
are not unlawfully present unless the USCIS
or a judge determines that the duration
of their visa ended. Interestingly, this
is applicable to Canadians who cross the
border into the United States but are not
offered an I94, so it is important that
they keep proof of their time of entry into
the country.
If a non-ctizen files for a change of status,
as long as he or she does not work without
authorization and a decision has not been
made on their case, he or she is authorized
to stay until the time the case is decided.
For cases that are untimely filed or where
the non-citizen worked without authorization,
unlawful presence begins on the date the
original case is denied. If the non-citizen
is an F or J visa holder, the unlawful presence
begins when the case is denied, regardless
of whether the case was untimely filed,
filed frivolously, or the alien worked without
authorization.
As mentioned previously, there is a 120-day
rule in 8 USC section 1182(a)(9)(B)(iv)
that states that the three year bar timeline
is tolled (stops) for 120 days if a non-citizen
is lawfully paroled (allowed in) or admitted
(gained status), filed a legitimate case
prior to the non-citizen’s status
expiring, and did not undertake unauthorized
work.
Some key points to understand is that the
time bars do not count time cumulatively
(added together), so if an alien stayed
for 2 months in 2004 and 3 months in 2005,
the times would not be added together, and
waivers are available under INA 212(d)(3)(A).
IMMIGRANTS
A non-citizen that obtains a Green Card
either through an EB-5 investment visa or
a K visa for non-citizens who marry U.S.
citizens, and fails file an I829 form for
the investment or an I751 form for the marriage,
will accumluate unlawful presence within
the country. The government may decide to
accept a late filing of the non-citizen's
case, placing the non-citizen back into
status without any unlawful presence; however,
this requires the help of a competent attorney
and if this is your situation your are advised
to seek an immigration attorney's assistance.
If a non-citizen files a 245(a) or (i)
Adjustment of Status and section 249 Affirmative
Registry applications, he or she will not
considered to be staying in the country
without authorization, but will be considered
to be staying with the authorization of
the Attorney General, regardless of whether
the non-citizen’s I94 has expired.
So someone who marries a U.S. citizen could
file for Adjustment of Status and wait for
an entire year after their stay ends. If
the non-citizen, though, has an unlawful
stay prior to filing for the Adjustment
of Status, that unlawful stay applies towards
the 180-365 day overstay situation. Once
the case is filed, however, the non-citizen
is authorized to stay until the case is
approved, denied, renewed, or appealed at
the Board of Immigration Appeals level.
Note, that appeals filed with the federal
court system do not stay the time. This
section is not applicable to spouses and
children who are subject to battery or extreme
cruelty and can demonstrate a connection
between their stay and the cruelty.
Once a non-citizen files for Adjustment
of Status, he or she is not staying without
authorization providing that the non-citizen
did not do unauthorized work or the case
has not been decided upon yet. Basically,
a non-citizen may stay until their case
is decided. For example, a person enters
on a B-1 visitor for business visa, and
files a non-frivolous case for extension
on their visa prior to the expiration on
the original B-1. Although the B-1 holder’s
I94 has expired and he or she has not received
any information from the USCIS on their
case, they are still considered to be in
authorized stay. Even if it takes the USCIS
more than 120 days to make a determination,
the B-1 visa holder would still be in authorized
stay status. However, if the B-1 holder’s
case is eventually denied, the time for
unlawful presence begins on the date the
person’s I94 expired.
As mentioned previously, there is a 120-day
rule in 8 USC section 1182(a)(9)(B)(iv)
which states that the three year bar timeline
is stopped for 120 days if an alien is lawfully
paroled (allowed in) or admitted (gained
status), filed a legitimate case prior to
the alien’s status expiring, and did
not undertake unauthorized work. Arguments
can be made on both sides as to whether
the application should ultimately be approved
or not.
Some key points to understand is that the
time bars do not count time cumulatively
(they do not add together), so if a non-citizen
stayed for 2 months in 2004 and 3 months
in 2005, the times would not be added together,
and waivers are available if the applicant
is an immigrant and the spouse or child
of a U.S. citizen and are able to demonstrate
extreme hardship. This waiver is called
a 601 waiver, and should be completed under
the advice of an attorney.*
Non-Immigrants
and Immigrants
Deportation
and Inadmissibility
Unlawful
Presence
Expedited
Removal and Re-Entry After Deportation
Immigration
Acts Effecting H-1B and Family Based Visas
Reference
Tool for Waivers of Inadmissibility or Removability
Grounds
for Inadmissibility and Removability
Waivers
of Inadmissibility or Removability
Other
Avenues of Relief
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