What is the Unlawful Presence Waiver?

Undocumented immigrants in the U.S. often face a difficult process if they would like to apply for a green card and become citizens or permanent residents. Thankfully, the Unlawful Presence Waiver allows them to apply for a green card and begin the process in a more straightforward manner, without extensive wait times. This guide can help you understand who qualifies for an Unlawful Presence Waiver and how to get started with the application, but be sure to consult an immigration attorney before you file the application, as they will be able to help you determine your eligibility, prepare the necessary paperwork to improve your chances of being accepted.

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Why is it Called “Unlawful Presence?”

Generally, the only way to get a green card in the U.S. is to enter the country according to existing immigration laws. This means that undocumented immigrants would need to travel abroad and reenter the U.S. to apply; however, those present in the U.S. for more than 180 days to more than one-year would be inadmissible again for an extended period of time, with no guarantee that they would be allowed back into the country after their time away.

The length of time outside the U.S. required depends on the length of time the person was in the U.S. Staying in the U.S. for under 180 days generally requires around one-year outside the country before re-entering. However, an undocumented immigrant who leaves the U.S. and attempts to reenter lawfully without the use of the waiver may be subject to a three or 10 year bar from entering, depending on how long they have previously stayed in the country. Those who have stayed for more than 180 days may be barred for three years, while the 10 year bar applies to those who have stayed for one-year or more.


In January 2013, the Unlawful Presence Waiver was introduced, helping undocumented immigrants avoid the long bars and return to the U.S. before they can begin their citizenship application process. The waiver allows applicants to apply for a green card, leave for the required amount of time — which is typically a few weeks or months, rather than several years — and return to the country after completing an interview at the U.S. embassy or consulate. The waiver takes effect after the applicant leaves and is deemed eligible for an immigrant visa.

Qualifications For the Unlawful Presence Waiver

Not everyone qualifies for the Unlawful Presence Waiver. Applicants must be at least 17 years old and must also be married to a U.S. citizen, an unmarried child under 21 years old of a U.S. citizen, the parent of a U.S. citizen who is over 21, or the spouse or unmarried child of a lawful permanent resident. Finally, the applicant must show that these people, called qualifying relatives, will face extreme hardship if they are refused admission to the U.S. after leaving.

Hardship can be proven by showing that your qualifying relative will face extreme emotional or physical distress if they are forced to leave the country with you or if you are forced to leave without them. If you are the primary caretaker for your relative, if they need specific medication that can only be found in the U.S., or if they would suffer financially from moving to your country of origin, the relative may qualify. An immigration attorney can help you determine the best way to demonstrate these hardships for your waiver application.

There are several other requirements for the waiver as well. First, the applicant must have an approved petition stating that they are eligible for an immigrant visa and a pending immigrant visa case with the State Department for the qualifying relative. They must also pay a processing fee, be physically present in the U.S. to file the application, and not have been scheduled for an immigrant visa interview before January 3, 2013.

Applicants who have a criminal history, committed fraud, or have been permanently barred from the U.S. are typically not eligible for a waiver. Consult an attorney about your specific case before submitting an Unlawful Presence Waiver application to determine your eligibility.

Getting Legal Support

The U.S. immigration system is complex and detailed, making it essential to hire an experienced immigration attorney in most cases. Contact the attorneys at Johnson & Masumi for a consultation to discuss the details of your case and get help with the application. The firm’s knowledgeable attorneys can help you determine your eligibility, prepare and submit an application, and practice for the reentry interview. Johnson & Masumi can also work with individuals on deportation cases; fiancée, student, and work visas; and a number of other immigration related legal concerns.

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