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When do you need an I-212 Waiver (and how do you get it)?

Posted on October 23, 2015 | Comments Off on When do you need an I-212 Waiver (and how do you get it)?

iron gateIf you have been removed from the U.S., you are barred from reentering the country for a set number of years or perhaps permanently, depending on why you were removed. Illegal (or attempted illegal) reentries to the U.S., in certain situations, also make you permanently inadmissible.

To be admitted to the U.S. while the bar still applies, you must file for and obtain an I-212 waiver or Consent to Reapply (CTR). Although the two terms are used interchangeably, a CTR request does not always involve the filing on an official Form I-212 and application fee.

When Do I Need an I-212 Waiver or Consent to Reapply?

Sections 212(a)(9)(A)(i) and (ii) of the Immigration and National Act state that foreign nationals who have been ordered removed may not be readmitted to the U.S. until they have stayed abroad for 5, 10 or 20 years. An aggravated felony conviction, however, creates a permanent bar.

Sections 212(a)(9)(C)(i) and (ii) of the Immigration and National Act further state that foreign nationals who illegally enter or attempt to illegally enter the U.S. after certain prior immigration violations are permanently barred.

When you are subject to the 5, 10 or 20 year-bar, you do not need the I-212 waiver if you wait outside the U.S. for the duration of the bar before you seek admission to the U.S. But if you wish to lawfully reenter the U.S. before the time bar expires, you must obtain an I-212 waiver.  And when a permanent bar applies to you, you will forever be required to obtain an I-212 waiver.

An approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, or Consent to Reapply is valid indefinitely, as long as it is not revoked by the agency that issued the approval.

When the I-212 grant or Consent to Reapply provides permanent relief, it may be used for future immigrant or nonimmigrant purposes, as long as you do not incur new inadmissibility under INA section 212(a)(9)(A) or (C).

Returning unlawfully to the U.S. without the Consent to Reapply may lead to serious consequences, including reinstatement of your removal order, prosecution in criminal court, and a permanent bar from admission to the U.S. (that requires you to wait outside the U.S. for 10 years before you may apply for the waiver).

Five-Year Bar

You have a five-year bar on reentry from the date of your removal if:

  • You were removed upon arrival in the U.S., i.e. ordered removed in an expedited removal proceeding by U.S. Customs & Border Protection (CBP) at a U.S. port of entry. [INA section 212(a)(9)(A)(i)]
  • You were placed in removal proceedings upon arrival in the U.S. and then ordered removed by an immigration judge as an arriving alien. [INA section 212(a)(9)(A)(i)]

Ten-Year Bar

You have a 10-year bar on reentry from the date of your removal if:

  • You were ordered removed, other than as an arriving alien, by an immigration judge in removal proceedings. [INA section 212(a)(9)(A)(ii)]
  • You failed to timely depart the U.S. under an order of voluntary departure issued by an immigration judge, causing the voluntary departure to be converted to removal order.  [INA section 212(a)(9)(A)(ii)]
  • You departed the U.S. willingly, but before removal proceedings were concluded.  [INA section 212(a)(9)(A)(ii)]
  • You left the U.S. while a removal order was outstanding.  [INA section 212(a)(9)(A)(ii)]

Twenty-Year Bar

You have a 20-year bar on reentry from the date of your removal if you were ordered removed from the U.S. more than once, whether as an arriving alien or not.  [INA section 212(a)(9)(A)(ii)]

Permanent Bar

You have a permanent bar on reentry from the date of your removal if:

  • You were convicted of an aggravated felony.  [INA section 212(a)(9)(A)(ii)]. NOTE: For purposes of this permanent bar, it does not matter whether you have been convicted of an aggravated felony in or outside the United States, whether the conviction itself resulted in the removal order, or whether the conviction occurred prior to or after the removal order.
  • You reentered or attempted to reenter the U.S. illegally (without inspection or lawful admission) after you accrued more than one year (in the aggregate) of unlawful presence in the U.S. and left. [INA section 212(a)(9)(C)(i)(I).]
  • You reentered or attempted to reenter the U.S. illegally (without inspection or lawful admission) after you were ordered removed from the U.S. [INA section 212(a)(9)(C)(i)(II)].

Key Things to Know About the Permanent Bar

Permanent Bar Under INA section 212(a)(9)(A)(ii)

The permanent bar, due to an aggravated felony conviction, applies even if you were removed for reasons other than the conviction or you were convicted of the aggravated felony after being removed from the U.S.

Permanent Bar Under INA section 212(a)(9)(C)(i)(I) and (II)

The permanent bar, due to illegal entry or attempted illegal entry, applies only if you accrued the (1+ year) unlawful presence or were ordered removed on or after April 1, 1997, or entered or attempt to reenter the U.S. unlawfully on or after April 1, 1997.

The accrual of unlawful presence is cumulative. For example, if you were unlawfully present for 6 months in 3 different periods (i.e. 18 months total), and you then re-enter the U.S. illegally, you face the permanent bar.

Unlike with the 3/10 year unlawful presence bar under INA 212(a)(9)(B), there are no exceptions for minors and asylees when it comes to the permanent bar. So if you were under 18 when your parent took you to the U.S., you accrued unlawful presence of more than 1 year, you left, and then returned to the U.S. without inspection, you face the permanent bar.

NOTE TO IMMIGRANT VISA APPLICANTS: If you are subject to the permanent bar under INA 212(a)(9)(C)(i) and seek an immigrant visa, you must be outside the U.S. and wait ten years abroad before filing the Form I-212. Based on 2006-2007 Board of Immigration Appeals case law and 2009 USCIS policy, an I-212 application for waiver of this permanent bar cannot be approved unless you are outside the U.S. and at least 10 years have elapsed from your date of departure.

NOTE TO I-360 VAWA SELF-PETITIONERS: If you are a VAWA self-petitioner, you do not have to wait outside the U.S. for 10 years to apply for a separate waiver of the INA 212(a)(9)(C) inadmissibility ground. But you must establish a connection between (i) your battering or subjection to extreme cruelty at the hands of your U.S. citizen or permanent resident spouse and (ii) your removal, departure from the United States, or illegal re-entry into the U.S.

NOTE TO NONIMMIGRANT VISA APPLICANTS: If you are inadmissible under INA 212(a)(9)(C)(i)(I) [9C1] and seek a nonimmigrant visa, you may file for temporary relief at any time through the U.S Consulate.  This is referred to as a 212(d)(3) waiver instead of a Consent to Reapply for Admission. The U.S. Consulate may submit an ARIS Waiver Request Form through the ARIS system. If granted, this relief is temporary and may not be extended to any future visa applications.

If section 212(a)(9)(C)(i)(I) [9C1] is the only inadmissibility ground, and more than ten years have passed since the bar was incurred, you may file the Form I-212 with USCIS (DHS) to obtain a Consent to Reapply. If granted, this relief is permanent and allows the issuance of a full validity visa.

A nonimmigrant visa applicant who is barred under INA 212(a)(9)(C)(i)(II) [9C2] must wait 10 years outside the U.S. before he may file a Form I-212 with USCIS (DHS). ARIS is not used by the U.S. Consulate for this relief. If granted, this allows the issuance of a full validity visa.

What are the Limitations of the I-212 Waiver or Consent to Reapply?

The I-212 waiver or Consent to Reapply alone is generally not enough to request lawful admission to the United States. It only gives you permission to apply for admission with a nonimmigrant visa, immigrant visa or, in some cases, adjustment of status, when you are inadmissible under INA 212(a)(9).

Only visa-exempt citizens of Canada, Palau, Federated States of Micronesia, and the Republic of the Marshall Islands do not need a visa to enter the United States for temporary visits. [NOTE: Being visa-exempt is not the same as being a citizen of a Visa Waiver Program (VWP) country, where the applicant still has to receive authorization under ESTA. ESTA will not be granted to an inadmissible person.]

If your waiver is granted, your prior visa status is not restored. Instead, you merely have permission to apply for a new visa or admission to the United States. For example, if you previously had lawful permanent residence based on marriage to a U.S. citizen, but were removed from the U.S., you must seek a new immigrant visa after the I-212 waiver is granted. If you are now divorced, you will no longer qualify for the immigrant visa based on the same marriage. You may, however, use the I-212 waiver to apply for a visa on another basis.

The I-212 waiver is also not enough if you have other grounds of inadmissibility for which there is no waiver or for which there is a waiver, but you do not qualify.

For instance, fraud or willful misrepresentation of material fact to gain immigration benefits, under INA 212(a)(6)(C)(i), and certain crime-related grounds under INA 212(a)(2) make you permanently inadmissible. An I-601 [INA § 212(i)] immigrant waiver is available to overcome the fraud/willful misrepresentation bar when you have a qualifying relative who will suffer extreme hardship if you are not admitted to the U.S. An I-601 [INA § 212(h)] immigrant waiver is available to some foreign nationals for some criminal grounds. A 212(d)(3) nonimmigrant waiver is available for most inadmissibility grounds.

Where Do I File My Form I-212 Application or Request for Consent to Reapply?

Whether you are in the U.S. or abroad, the reasons you were deported, the type of visa you intend to use to enter the U.S., whether you also need an I-601 waiver, and other factors determine where you file your I-212 application or request for Consent to Reapply.

There are various potential filing locations, including the U.S. Consulate that will issue the visa if the waiver is granted; the U.S. Citizenship and Immigration Services (USCIS) Field Office having jurisdiction over the place of the original removal proceedings; the U.S. Customs and Border Protection (CBP); and the Executive Office for Immigration Review (EOIR). The direct filing addresses for the I-212 are currently posted on the USCIS website.

The current application procedures, which are subject to change, include the following: 

Immigrant visa applicants who also need a concurrent Form I-601 waiver: file Forms I-212 and I-601 concurrently with the USCIS Phoenix Lockbox, which will forward your applications to the Nebraska Service Center.

Immigrant visa applicants who do not require a Form I-601 waiver: file Form I-212 with the USCIS field office having jurisdiction over the place where your removal proceedings were held. The same field office retains jurisdiction to adjudicate the Form I-212 waiver application.

Nonimmigrant visa applicants (other than K, T, U, or V visa applicants): request a Consent to Reapply at the U.S Consulate with jurisdiction over your nonimmigrant visa application.  The consular officer must then forward a recommendation for consent to reapply for admission and visa issuance to the CBP/Admissibility Review Office (ARO) for a decision.

K or V nonimmigrant visa applicants: file Form I-212 with the USCIS Phoenix Lockbox, which will forward your application to the Nebraska Service Center.

Nonimmigrant visa applicants with INA 212(a)(9)(C)(i) bar. If section 212(a)(9)(C)(i)(I) [9C1] is the only inadmissibility ground, and more than 10 years have passed, the Form I-212 is filed with USCIS (DHS). If section 212(a)(9)(C)(i)(II) [9C2] applies, you must wait 10 years before you may file the Form I-212 with USCIS [DHS].

Nonimmigrant visa applicants with the 212(a)(9)(C)(i)(I) [9C1] bar – but NOT the 9C2 bar – may seek temporary relief [212(d)(3) waiver] through the U.S. Consulate at any time.

Nonimmigrants or visa-exempt citizens at a U.S. port of entry who are not required to obtain nonimmigrant visas: file Form I-212 in person at a CBP-designated port of entry or a CBP-designated preclearance office, which will then forward it to the CBP/ARO for adjudication. [UPDATE: Starting in mid-2019, eligible citizens of visa-exempt countries — Canada, Palau, Federated States of Micronesia, and the Republic of the Marshall Islands — file the Form I-192 application through the online system, e-SAFE. Electronic filers need to go to the following ports of entry to complete the biometrics portion (fingerprints and photograph) of the waiver process: Blaine, Washington; Buffalo, New York; and Toronto Pearson International Airport.]

Adjustment of status applicants who are physically present in the U.S. and are inadmissible only under INA section 212(a)(9)(A): file Form I-212 with the USCIS office having jurisdiction over the Form I-485 adjustment of status application, which will adjudicate both applications.

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Applying for an I-212 waiver or Consent to Reapply involves more than just submitting the form and/or documents listed in the instructions. True success in obtaining an I-212 waiver is more likely when you have experienced counsel.

When you need the I-212 waiver or Consent to Reapply to reenter the U.S., consult an immigration attorney at least once and, preferably, hire a reputable one to guide you through the process from start to finish.

For more information on what to submit with your application and why seeking counsel helps, read our related article, What should you to get your I-212 Waiver? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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I-601A, Provisional Unlawful Presence Waiver: Advantages and Limitations

Posted on June 12, 2015 | Comments Off on I-601A, Provisional Unlawful Presence Waiver: Advantages and Limitations

Most undocumented immigrants who entered the U.S. illegally must depart to apply for an immigrant visa at their U.S. Consulate overseas. Unless they qualify for 245(i) benefits, they cannot file a Form I-485 to adjust to permanent resident status while they are in the U.S.

If the person accumulated more than 180 days of unlawful presence prior to departing the U.S., it is much harder to obtain the visa overseas. To get the visa, the person first needs to receive a waiver of inadmissibility for the unlawful presence.

The Provisional Unlawful Presence Waiver, which was introduced on March 4, 2013, may be obtained before the immigrant visa applicant departs the U.S.  It reduces the uncertainty and risk that come with consular processing, but has many limitations.  To get this waiver, applicants must file the Form I-601A with USCIS while they are still in the U.S.

When is the Unlawful Presence Waiver Required? 

In 1996, Congress passed a law that bars foreign nationals from lawfully re-entering the U.S. for 3 or 10 years, if they accumulated a certain period of unlawful presence in the U.S. before they left the country.  Persons are unlawfully present if they:

(1) entered the U.S. without inspection (e.g. crossing the U.S.-Mexico border illegally or stowing away in a car crossing from Canada to the U.S.); or

(2) entered the U.S with inspection but failed to leave on time (e.g. entering the U.S. lawfully on a visitor’s visa or Visa Waiver program and overstaying the authorized period, in which case unlawful presence normally begins to accrue after the authorized stay expires).

Persons who accumulate more than 180 days but less than 1 year of unlawful presence after the age of 18 and after April 1, 1997 (for a continuous period), and then leave the U.S., are barred from re-entering the U.S. for 3 years. Persons who accumulate one year or more of unlawful presence after age 18 and after April 1, 1997 (for an aggregate period) and then leave the U.S., are barred from re-entering the U.S. for 10 years. This is commonly known as the 3/10 year bar.

Being in unlawful status does not necessarily mean you are unlawfully present for purposes of the 3/10 year bar. Some examples include:

1) A minor under 18 years old. Minors do not accrue unlawful presence until the day after their 18th birthday.

2) F-1 students who are admitted for the duration of their status. F-1 students do not begin to accrue unlawful presence until USCIS or an immigration judge finds they violated their status.

3) Adjustment of status applicants.  Persons with a properly filed Form I-485, application for adjustment of status, do not accumulate unlawful presence while the application is pending. The accrual of unlawful presence is tolled until USCIS denies the application.

When the 3/10 year bar applies, the person must obtain an unlawful presence waiver to lawfully re-enter the U.S. before the bar expires. For example, if you accumulated 190 days of unlawful presence and then depart the U.S. on June 4, 2015, you must obtain the waiver to receive an immigrant visa prior to June 4, 2018 (3-year bar).  If the unlawful presence lasted 10 years, you must obtain the waiver to receive an immigrant visa prior to June 4, 2025 (10-year bar).

Because the waiver is difficult to get, persons with unlawful presence should stay in the U.S. and apply for adjustment of status, instead of apply for an immigrant visa overseas, whenever possible. For instance, if you overstayed after entering the U.S. lawfully on a temporary visa (e.g. B-2, F-1 or H-1B visa), you may file for adjustment of status if you marry a U.S. citizen who files an immigrant visa petition for you.  The 3/10 year bar is not triggered unless you depart the U.S.

Advantages of the Provisional Unlawful Presence Waiver

Many undocumented immigrants are unwilling to take the risk of departing the U.S. to legalize their status, especially when they do not know whether a waiver of the 3/10 year bar will be granted. The provisional waiver provides two main advantages:

1. Higher likelihood that immigrant visa will be granted by the U.S. Consulate

Being granted the provisional waiver increases the likelihood that the U.S. Consulate will issue the immigrant visa at or shortly after the interview.

Applicants who do not qualify for the provisional waiver must file the regular Form I-601, Application for Waiver of Grounds of Inadmissibility, after they attend the visa interview. In contrast, Form I-601A applicants already have the provisional waiver at the time of the interview. Unless there are other grounds of inadmissibility, the U.S. Consulate typically grants the visa when USCIS has provisionally waived the unlawful presence.

2. Shorter wait time abroad and separation from family in the U.S.

Regular Form I-601 applicants must wait abroad, after attending their visa interview, while USCIS reviews their waiver request. Because USCIS normally takes at least six months to process the waiver, applicants must plan to wait outside the U.S. for this time period or longer.

If USCIS grants the waiver, the U.S. Consulate could take at least another month to contact the applicant to send in more documents to finish processing or attend a second interview to update the case and make sure the applicant is eligible for the visa.  The wait time abroad and separation from family often last at least six months and, in some cases, one year or more.

The provisional waiver process allows applicants to obtain the waiver ahead of time, before they depart the U.S. to attend the visa interview. You get to stay in the U.S. with your family while USCIS processes the waiver request, which reduces the time you are separated from your family. After the waiver is approved, you then depart the U.S. to attend the interview at the U.S. Consulate. Instead of waiting abroad for months like regular Form I-601 applicants, you normally get the visa within days to resume your life in the U.S.

Limitations of the Provisional Unlawful Presence Waiver

The Provisional Unlawful Presence Waiver is not available to all immigrant visa applicants and waives only inadmissibility due to unlawful presence.

1. Applicant must be an immediate relative of a U.S. citizen

The March 2013 regulations allow only immediate relatives of U.S. citizens to apply for the provisional waiver.

An immediate relative is the spouse of a U.S. citizen, child (unmarried and under 21) of a U.S. citizen, or parent of a U.S. citizen (who is over age 21). NOTE: Some persons over age 21 may still be classified as a “child” under the Child Status Protection Act (CSPA).

In November 2014, the Obama Administration directed USCIS to issue new regulations expanding the Form I-601A waiver to other applicants, but USCIS has yet to take this step. Until such time,  all applicants except immediate relatives of U.S. citizens must file the regular Form I-601.

[UPDATE: On July 29, 2016, DHS published a final rule expanding the I-601A waiver. As of August 29, 2016, the provisional waiver is available to all eligible applicants.]

2. Applicant must be physically present in the U.S.

You may apply for the provisional waiver only if you are already in the U.S. and are still in the U.S.

If you are living overseas or if you already departed the U.S., you must file the regular Form I-601 with USCIS after you attend the immigrant visa interview.

3. Applicant must prove that the qualifying relative will suffer extreme hardship if the waiver is denied

Applicants for the provisional waiver must meet the same standards under the regular Form I-601. You still must prove that your “qualifying relative” will suffer “extreme hardship” if you are not admitted to the U.S. before the 3/10 year bar expires.

Qualifying relatives are your U.S. citizen or permanent resident spouse or parent. U.S. citizen or permanent resident children are not qualifying relatives under immigration law.

The qualifying relative and the immediate relative need not be the same person. For example, when the undocumented immigrant’s spouse is a permanent resident, and the couple has an adult U.S. citizen son, the spouse is the qualifying relative and the son is the immediate relative. Although the son files the immigrant petition in the immediate relative category, the visa applicant must prove that the spouse will suffer extreme hardship if the 3/10 year bar is not waived.

Meeting the “extreme hardship” standard is challenging. “Extreme hardship” is more than just the normal hardships that arise when families are separated.

USCIS considers a variety of factors when determining whether your qualifying relative will suffer extreme hardship either by staying abroad with you or remaining in the U.S. without you. They include:

Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.

Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).

Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.

Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.

Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

USCIS considers the totality of the circumstances and weighs all the factors in the aggregate. USCIS will grant the waiver only if determines that the qualifying relatives will suffer extreme hardship if they remain in the U.S.  without the applicant or if they joined the applicant abroad, due to a combination of factors. 

4. Applicant cannot be inadmissible to the U.S. on other grounds

You may apply for the provisional waiver if you are inadmissible only on account of your unlawful presence in the U.S. If you are subject to other grounds of inadmissibility, such as illegal re-entries, false claims to U.S. citizenship, immigration fraud, or criminal convictions, you may not file the Form I-601A .

If USCIS determines, based on the record, there is reason to believe you are inadmissible on grounds other than unlawful presence, it will deny your Form I-601A.

Illegal re-entries or attempts to illegally re-enter the U.S. following one year or more of unlawful presence or following a removal order, after April 1, 1997,  is a permanent bar.  This cannot be waived by the filing of a Form I-601A. Rather, the applicant must wait outside the U.S. for 10 years and then request permission to be admitted to the U.S. by filing a  Form I-212.

There is no waiver for false claims to U.S. citizenship to obtain benefits under immigration law or federal or state law.  Rather, applicants must prove that no such claim was made or that they timely retracted the false claim.

In some cases, grounds of inadmissibility due to fraud or willful misrepresentation of a material fact to obtain immigration benefits, or due to criminal convictions, may be waived through the filing of a regular Form I-601 waiver application.

In January 2014, USCIS clarified that it will not automatically deny the Form I-601A when the applicant has a criminal history. USCIS will review the entire record to determine whether the criminal offense falls within the “youthful offender” or “petty offense” exception, or is not a crime involving moral turpitude. If any exception applies, USCIS will continue to process the waiver request and approve it, assuming the requirements are met and a favorable exercise of discretion is appropriate.

5. Applicant must not be in removal proceedings or subject to a removal order

If you are in removal proceedings, you may not apply for the provisional waiver unless the Immigration Court administratively closes your removal proceedings and does not place your case back on the calendar to continue removal proceedings as of the date of filing the Form I-601A.

You do not qualify for the provisional waiver if you (a) have been ordered removed, excluded, or deported from the U.S. or (b) are subject to reinstatement of a prior order of removal.

6. Applicant does not receive any lawful status or protection from removal

Applying for the provisional waiver does not give you any lawful status in the U.S., does not grant any immigration benefits such as employment authorization, and does not protect you from removal.

Although USCIS does not intend to place Form I-601A applicants in removal proceedings, it must still follow Department of Homeland Security (DHS) and USCIS Notice to Appear (NTA) guidance related to initiation of removal proceedings. So, if you mistakenly apply for the provisional waiver when you are removable or inadmissible for reasons other than unlawful presence, e.g. criminal convictions, you are alerting USCIS and could end up in removal proceedings.

How to Apply for the Provisional Waiver

To apply for the provisional waiver, you must:

(a) Be the beneficiary of an approved I-130 immigrant visa petition classifying you as an immediate relative of a U.S. citizen;

(b) Intend to pursue an immigrant visa at the U.S. Consulate abroad instead of apply for adjustment to permanent residence within the U.S.;

(c) Have an immigrant visa case pending with the U.S. Department of State (DOS);

(c) Pay the immigrant visa processing fee to the DOS; and

(d) File a Form I-601A, Application for Provisional Unlawful Presence Waiver, with USCIS. Make sure your application is complete, signed, and submitted with the correct application and biometrics fees. You must also include supporting documents and information showing how your qualifying relative would suffer extreme hardship if you are not granted the waiver.

If USCIS denies your Form I-601A, you may not appeal the decision or file a motion to reopen or reconsider the decision. You may, however, file a new waiver application with additional evidence and pay the fees again.

In some cases, even when you are not eligible for the provisional waiver, you may seek a waiver for the 3/10 year bar and other grounds of inadmissibility through the regular Form I-601 waiver process. This means you first need to depart the U.S. and attend the immigrant visa interview at a U.S Consulate abroad, which would then instruct you to file the Form I-601 if you qualify for a waiver.

* * *

Consult an experienced immigration attorney to help you determine whether you must apply for an immigrant visa instead of file for adjustment of status; whether you are inadmissible due to unlawful presence or other grounds; and whether you qualify for the provisional waiver (or the regular waiver).

Working with an attorney is critical to presenting a strong waiver application with the necessary information and documents showing you meet the extreme hardship standard.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Temporary Protected Status (TPS): who can apply, when to apply, and what it provides

Posted on January 12, 2015 | Comments Off on Temporary Protected Status (TPS): who can apply, when to apply, and what it provides

Foreign nationals often want to know whether a civil war or other unstable conditions in their home country allows them to seek refuge and stay lawfully in the U.S.

Those who do not qualify for asylum might be still be able to obtain another form of humanitarian relief known as Temporary Protected Status (TPS).

TPS is a temporary immigration status granted to those who are already in the U.S. during a period when they cannot return safely to their home country or when the home country cannot handle the return of its nationals.

But the Secretary of Homeland Security must first designate the country for TPS due to the following temporary conditions:

  • Ongoing armed conflict (such as civil war)
  • A natural disaster (such as earthquake, hurricane, drought)
  • An epidemic or outbreak of disease
  • Other extraordinary and temporary conditions

WHO CAN APPLY FOR TPS

To qualify for TPS, you must meet these eligibility requirements:

1. Be a national of a country on the TPS list, or a person without nationality who last habitually resided in the designated country

You may visit the TPS page of the USCIS website to see which countries are currently designated for TPS.

As of January 12, 2015, they are El Salvador, Guinea, Haiti, Honduras, Liberia, Nicaragua, Sierra Leone, Somalia, Sudan, and Syria. (NOTE: Countries can be added or taken off the list following the date of this article.)

2. Have physical presence in the U.S.

You must have been continuously physically present in the U.S. since the effective date upon which your country was designated or redesignated for TPS.

3. Have continuous residence in the U.S.

You must have continuously resided in the U.S. from the date USCIS specifies for your country, usually a few months or days prior to the effective date of TPS.

The law allows an exception to the continuous physical presence and continuous residence requirements for brief, casual and innocent trips outside the U.S. (such as a short trip to Canada or Mexico).

You may NOT be eligible to obtain TPS or keep your TPS if you:

1. Have a serious criminal record

If you have been convicted of a felony or two or more misdemeanors in the U.S., you are ineligible for TPS benefits.

2. Are found inadmissible to the U.S. and do not qualify for a waiver

Criminal convictions, immigration violations, health issues, and other grounds can make you inadmissible to the U.S. You may file a Form I-601 for a waiver of inadmissibility in certain situations, such as when you sought to obtain immigration benefits by fraud or willful misrepresentation of a material fact.

You would need to show that the waiver is for humanitarian purposes, for keeping your family together, or for the public interest. Once you receive the waiver, it will apply to subsequent re-registrations, but not to other immigration benefits.

Some grounds, such as crimes involving moral turpitude and multiple criminal convictions (except purely political offenses), cannot be waived. If you are inadmissible and do not qualify for a waiver, you may not obtain TPS.

3. Are subject to the asylum bars

Although TPS is different from asylum, USCIS treats them the same way when it comes to the mandatory bars to asylum. So if you have firmly resettled in a third country, have persecuted others in your home country, engaged in or incited terrorist activity, pose a national security threat, or have been convicted of certain serious crimes, you are not eligible for TPS.

WHEN TO APPLY FOR TPS

You must file for TPS during the open initial registration or re-registration period, or qualify for late initial filing during any extension of your country’s TPS designation.

On November 20, 2014, Liberia, Guinea, and Sierra Leone were designated for TPS for 18 months from November 21, due to the outbreak of Ebola virus disease in West Africa. The 180-day registration period began on November 21, 2014 and runs through May 20, 2015.

On January 5, 2015, the designation of Syria for TPS  was extended from April 1, 2015 through September 30, 2016, due to ongoing conflict. The re-registration period for applicants who already have TPS began on January 5, 2015, and runs through March 6, 2015. Syria was also re-designated for TPS and the 180-day initial registration period for new applicants began on January 5, 2015, and runs through July 6, 2015.

The suspension of certain restrictions for on-campus and off-campus employment for F-1 nonimmigrant students from Syria was also extended, effective through September 30, 2016.

On January 7, 2015, the designation of El Salvador for TPS was extended for an additional 18 months, from March 10, 2015, through September 9, 2016, due to a series of earthquakes in 2001. The re-registration period for applicants who already have TPS began on January 7, 2015, and runs through March 9, 2015.

If you do not submit your TPS application within the specified period , you must qualify for a late re-registration or late initial filing for USCIS to accept it.

You must file with USCIS a Form I-821, Application for Temporary Protected Status, and a Form I-765, Application for Employment Authorization (regardless of whether you want a work card). If you are inadmissible due to criminal convictions, immigration violations, or other grounds, but qualify for a waiver, you must file your Form I-601, Application for Waiver of Grounds of Inadmissibility, with your TPS application.

For more information on the application process, go to the TPS page on the USCIS website.

WHAT TPS PROVIDES (AND DOES NOT PROVIDE)

What TPS provides

TPS permits you to live and work in the U.S. and travel in and out of the U.S. for the duration of the TPS designation without fear of being placed into removal proceedings. TPS may be granted to foreign nationals who are present in the U.S. on non-immigrant visas that will expire; those who initially entered the U.S. with a non-immigrant visa and then overstayed their authorized period; and those who entered without authorization.

As long as they remain eligible, TPS holders will not be removed from the U.S. and may apply for an Employment Authorization Document (EAD) to work anywhere in the country.

What TPS does NOT provide

TPS provides only temporary protection from removal. The authorization to live and work in the U.S. is also temporary.

The length of the TPS is typically between six and 18 months (although it can be extended). A country’s TPS designation can end once it recovers from the triggering event. Once the TPS designation ends, TPS holders may be removed from the U.S. (unless they qualify for another form of status or relief).

TPS does not allow individuals living in the designated countries to come to the U.S. You must already be in the U.S. – whether lawfully or unlawfully – for the specified period.

TPS is also not a grant of lawful permanent resident status and does not make you eligible for a green card or for U.S. citizenship.

(NOTE: TPS, however, gives you more time to remain lawfully in the U.S., which could lead to your qualifying for a green card in some other way, such as marriage to a U.S. citizen, sponsorship by a U.S. employer, or an asylum grant.)

Consult an Immigration Attorney 

There are strict eligibility requirements and filing deadlines for TPS. If your application is denied, it is tough to get the decision overturned on appeal.

You should consult an experienced immigration attorney to confirm whether you qualify for TPS and to get help with the application process.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Maurizo Costanzo, El Salvador – Earthquake 2001

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