Unlawful Presence: The Art of the Waiver

On September 30, 1996, President Bill Clinton signed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA) establishing the harsh penalties presented with the dreaded “unlawful presence” bar. This bar prevents countless of individuals from even applying for legalization out of fear of being barred from the U.S. due to their unlawful presence.


Immigration and Nationality Act 212(a)(9)(B), 8 USC [section] 1182(a)(9) states that an individual triggers the unlawful presence bar when they depart the United States after unlawfully staying in the country for a period of time. Thereafter, the bar must be either waived or extinguished before the individual is eligible to lawfully return to the United States. If an individual has accrued unlawful presence before traveling to a consulate abroad and has not obtained a waiver, they would be barred for 3 or 10 years depending on the time spent in the U.S. unlawfully.

The Art of the Waiver

It is important to understand that unlike most immigration matters, the waiver process does not contain an interview portion. Therefore, the adjudicating officer is the judge, jury and executioner in determining whether the waiver applicant merits this benefit. The applicant must establish that refusing their waiver request would result in extreme hardship to the citizen or lawfully resident spouse or parent of the applicant.

Compiling the waiver is as much an art as it as a practice of law, the attorney must prepare a filing so convincing that forces the officer to not just apply the law to the facts presented, but also reason with them on an emotional level, forcing them to decide in the applicant’s favor meanwhile making them believe it was their idea the entire time.

Proving Extreme Hardship

USCIS has yet to define what extreme hardship is for waiver concerns. However, any experienced immigration attorney will tell you that USCIS tends to look at some of the following:

Family Ties and Impact

Social and Cultural Impact

Economic Impact

Health Conditions and Care

Country Conditions

Family Ties and Impact

This is the area where less experienced attorneys tend to focus most because there is seemingly always an impact regarding family ties if someone is barred from the U.S. for any period of time. However, when analyzing the effect on family ties these newer attorneys only identify the short term effects instead of fully connecting the potential long-term ramifications suffered by the qualifying applicant. In considering your waiver for unlawful presence, a USCIS officer will factor in the qualifying relative’s ties to family members living in the United States, including age, status, and length of residence of any children. They will also take into account any responsibility for the care of any family members in the U.S., particularly children and elderly/disabled adults.

Social and Cultural Impact

In this area the applicant is forced to almost be more creative since most deportations are to other developed countries. However, USCIS will factor in any potential fear of persecution or societal discrimination that an applicant could potentially suffer if barred from re-entry into the U.S., which is something that varies greatly depending on country and region. For example, it is unlikely that many people are aware of the discrimination of handicap individuals in Moldova. These individuals suffer mass discrimination in Moldova to the point that they are just not safe to be there. There have been vast complaints of sexual misconduct in centers that house certain handicap individuals. Unless the attorney performing the waiver is well apprised of international affairs, this kind of detail can fall through the cracks and result in a waiver denial.

Economic Impact

USCIS officers will factor in various economic impacts in determining whether to grant or deny the waiver. The subsection most often focused on is the economic impact of the applicant’s departure on the qualifying relative, including the applicant’s or qualifying relative’s ability to obtain employment in the country of relocation. Often times, applicants have spent little time at all in their country of origin, causing there to be a potential language barrier, which could limit their ability to obtain certain employment.

The Painting

While those factors previously mentioned briefly touch on just what it is that USCIS will consider. It is important to have an attorney that will be able to arrange these facts in a way that is not just neat and organized to the officer, but also in a manner that is convincing and possesses the ability to tug at their heart-strings. Waivers are some of the most difficult benefits to obtain in immigration law and the stakes are even higher as one decider holds the fate of the applicant and their family. Contact an experienced attorney that can guide you through this process every step of the way.

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