All posts by chilllaw

Judge Finds Attorney General’s Gutting of Asylum Protections Unlawful

WASHINGTON, DC – Today, federal judge Emmet Sullivan struck down key portions of then-Attorney General Jeff Sessions decision in Matter of A-B-, which restricted the ability of survivors fleeing domestic and gang violence to access a fair day in immigration court. Judge Sullivan ruled that the decision violated both the Administrative Procedure Act and the Immigration and Nationality Act.

Anastasia Tonello, AILA President, praised the court’s decision, saying, “Again, the independent federal courts serve as a bulwark against the Trump administration’s unlawful restrictions on access to asylum and disregard for the rule of law. Judge Sullivan, appointed by President George H.W. Bush, hit the nail on the head when he ruled the policies unlawful, stating, ‘… it is the will of Congress—not the whims of the Executive—that determines the standard for expedited removal.’ The Attorney General does not have the authority to rewrite asylum law for the administration. This decision further demonstrates why due process and justice demand a fully independent immigration court and immigration judges free from undue political influence of the executive branch.”

AILA Executive Director Benjamin Johnson added, “While the federal government will surely appeal this ruling, we thank Judge Sullivan for recognizing the unlawfulness of the administration’s effort to curtail access to asylum by some of the most vulnerable populations in the world. Since the issuance of Matter of A-B-, the government has wrongfully denied too many credible fear claims made by survivors of domestic abuse and other horrific persecution. Though substantial due process barriers persist for these survivors even after today’s ruling, we take heart in knowing that in this case, the rule of law was restored.”

Marriage Based Petitions – US Citizen

I am a U.S. Citizen and my spouse is illegal. We live in the U.S., can we file for a Green card?

Marriage Based Petitions: If your spouse last entered the U.S. legally, or is 245(i) protected, and you are a U.S. Citizen, you may petition for your spouse and apply for a green card.

The process for petitioning for your spouse is as follows:

  • File an I 130 (family petition) and I 485 (adjustment of status) with the appropriate Immigration Service Center. The adjudication of marriage adjustment cases can vary from several months to several years depending on various factors.
  • Both you and your spouse will be required to attend an interview with Immigration. At the time of interview, you will need to show proof that the marriage is bona-fide (legitimate). Immigration will review documents, such as address displayed on driver’s licenses, joint bank accounts, tax returns and utility bills.
  • If you have been married less than two years at the time of interview and the application is approved, the Immigrant will be issued a temporary/conditional two year green card. After two years, the Immigrant is required to file an I-751 petition to lift the conditional status on the green card and must continue to prove the bona fides of the marriage.
  • If you are married more than two years at time of interview, the applicant or beneficiary will receive a permanent green card.

What if my spouse did not enter legally or is not 245(i) eligible?

If your spouse did not enter legally and is not 245(i) eligible, you would still file Form I-130, however, your spouse would not be able to file for their Green Card in the United States but would have to return to their country for consular processing. Your spouse would also have to file a 601-A unlawful presence waiver so that they would be able to return to the United States after they have been approved for their immigrant visa through the consular processing in their country.

What is the purpose of a conditional 2-year  Green Card?

In 1986, Congress passed the Immigration Marriage Fraud Amendments (IMFA) and added these to existing immigration laws. The purpose of IMFA was to deter people from entering fraudulent marriages solely for the purpose of obtaining lawful permanent resident status, by creating a “conditional residence” period for immigrant spouses who entered into a marriage with U.S. citizen/lawful permanent resident spouses within less than two years of applying for residence. To apply for removal of these conditions, immigrant spouses must normally file joint petitions with their U.S. citizen/lawful permanent resident spouse and prove the ongoing existence and good faith nature of the marriage. The law included waivers of this joint filing requirement under certain circumstances, where the marriage was entered into good faith but legitimately terminated before the end of the conditional period, or where the applicant would suffer extreme hardship if s/he was forced to return her/his home country.

In 1990, Congress created additional Amendments to the law creating a special waiver specifically addressing the dangers experienced by battered immigrants. A battered immigrant may apply for a waiver of the joint petition requirement and file her own I-751 petition. This may enable the battered immigrant to leave the abusive relationship without having to rely on the abusive U.S. citizen/lawful permanent resident spouse.

Eligibility Requirements for I-751 Waiver Petitions:

Within 90 days prior to expiration of the conditional green card, both the immigrant spouse and the United States citizen spouse must jointly file an application with USCIS to remove the conditions on the immigrant spouse’s residence. This application is called a Form I-751, Application to Remove the Conditions on Residence.

What if we are no longer married after 2 years?

If the petitioner and immigrant spouse are no longer married after two years,  the I-751 may be filed alone by the immigrant spouse, only if the immigrant spouse can prove the following:

That they entered into the marriage in good faith, but that the marriage was terminated in divorce; and/or

That they entered into the marriage in good faith, but the marriage was terminated due to the death of the United State Citizen spouse; and/or

That they entered into the marriage in good faith, and that she was subjected to physical battering and/or extreme mental cruelty; and/or

That he/she would suffer extreme hardship if returned to their country of origin.

Fiancé/Fiancé(e) Petitions (K1 Visas)

I am a U.S. Citizen and am engaged to non-citizen. How can I bring my fiancé to the U.S?

If you are a U.S. Citizen and engaged or considering becoming engaged to a non-U.S. Citizen, filing a K-1 visa is probably the best option to legally bring your fiancée or fiancé to the U.S.

The K-1 Visa allows you to invite your fiancé(e) to the United States for a period of 90 days, during which time your fiancé(e) must either marry you or return to his or her home country. No extensions of time will be granted after the 90 days and no change of status is permitted.

If the relationship does not work out, you decide not to marry, and your fiancé(e) returns home, you are both independently eligible to file a subsequent fiancé(e) visa application if you so desire. You will have to file an IMBRA (International Marriage Broker Regulation) waiver if you file within two years of the first petition’s approval.

Lawful Permanent Residents (LPRs) of the United States are not eligible to file for a K-1 visa.

You are eligible to apply for a K-1 Visa if you meet the following requirements:

You are a U.S. citizen

You have personally met your fiancé(e) within the previous two years, if culturally acceptable and does not violate long-established customs, or would create extreme hardship for you or your fiancé(e)

You and your fiancé(e) are both legally free to marry under the laws of your fiancé(e)’s country as well as the laws of the U.S.

Proof of permission to marry if you or your fiancé(e) are subject to any age restrictions

You marry each other within 90 days of your fiancé(e)’s arrival in the U.S.

Once the Immigration Service Center approves the K1 petition, the appropriate U.S. Consulate will receive the paperwork in order to schedule your fiancé’s interview.

E2 visa – Treaty Investors

E2 Visa – Treaty Investors

Do I qualify for an E2 visa?

The requirements for an E-2 Visa:

  • You must be a citizen of a country that has an investor treaty with the united States (see list below);
  • You must be coming to work in the United States for a company you own or one that is at least 50% owned by you or by other nationals of your home country;
  • The investor must come to manage or oversee the investment;
  • Your investment must be substantial;
  • The U.S. business must be a bonafide, for-profit business; and
  • You must intend to leave the U.S. when your business is completed.

What does it mean that the investment must be substantial?

The term substantial has not been defined by law to be a specific dollar amount.  What is considered to be substantial depends on the type of business. The lower the cost of the business, the higher the percentage of funds will be required in order to qualify.

Investment amounts below $100,000, no matter what the size or purpose of the business are likely to be scrutinized more closely by visa officers. While not impossible to be approved, the risk of denial increases when investments are below this amount.

What does it mean that the enterprise must be bonafide and not marginal?

A bona fide enterprise is one that is a real, active commercial or entrepreneurial undertaking which produces services or goods for profit.  The enterprise cannot be an idle investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor who has no intent to direct the enterprise.

A marginal enterprise is one that will not generate more than enough income to provide a minimal living for you and your family or to make a significant economic contribution.

Can I bring my wife or husband and  children on my  E-2 visa?

Your spouse and unmarried children under 21 can also get E2 visas by providing proof of their family relationship to you.

Can my wife or husband and children work while here with me on an E-2 visa?

Your spouse will be able to apply for a work permit but not your children. Your children may only study.

What happens when my children turn 21?

Dependent children lose their E visa status when they turn 21 years of age. At that time they need to find another status.

How long can I stay on an E-2 visa?

You will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.

How many times can I extend my E-2 visa?

There is no maximum limit to the number of extensions you may be granted. E2 visas may be extended as long as the E visa enterprise is operating, however, you must maintain an intention to depart the United States when your status expires or is terminated.

How do I extend my E-2 visa?

You may file Form I-129 with USCIS.

Can I travel on an  E-2 visa?

You may travel abroad and  you will be granted an automatic two-year period of readmission when returning to the United States. In such a case, there is no need to file Form I-129.

Can I get a green card through an E-2 visa?

No, an E2 visa is a non-immigrant visa and will not lead to a green card.  However, since an E-2 visa can be renewed indefinitely, as long as the applicant has maintained the terms and conditions of the E2 nonimmigrant classification; it is the closest thing one can get to a green card.

How is the E-2 visa different from other non-immigrant visas?

The E2 visa differs from  other types of non-immigrant visas whereby, the  E visa applicant need not demonstrate that they have ties in their home country to which they intend to return. 

The E-2 visa applicant merely has to indicate that they will eventually return to their home country upon termination of their status.

 

Countries that have treaties with the United States:

Albania, Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bulgaria, Cameroon, Canada, Colombia, Costa Rica, Czech Republic, Democratic Republic of the Congo, Ecuador, Egypt, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Ireland, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Liberia, Luxembourg, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Republic of Congo, Romania, Senegal, Slovak Republic, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia.

 

H-1B Employment Visa

Do I qualify for a H-1B Employment Visa?

To qualify for a H-1B employment visa, you must first have a job offer from the U.S. employer for duties to be performed in the United States.

What happens after I find a H-1B employer?

Your employer will file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). The LCA can be submitted up to 6 months before you plan to start work.

What is an LCA?

An LCA is a sworn declaration by the employer attesting to specific conditions regarding the employment as required by the DOL. For example, one requirement is  a promise that foreign nationals will be paid 100% of the prevailing market wage for the position or the employer’s actual wage, whichever is higher and will receive the same benefits as the U.S. workers.

Who has to file the petition for an H1-B visa?

Once the LCA is approved, your employer will file the H1-B petition. Your employer also has to pay the filing fees, including any fees for premium processing. In addition, your employer should pay for some portion of your attorney’s fees, if you use an attorney.

What is premium processing?

Premium Processing Service provides expedited processing for certain employment-based petitions and applications. Specifically, USCIS guarantees15 calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee.

What type of job qualifies for a H-1B visa?

Your job must be in a specialty occupation related to your field of study and it must  meet at least one of the following criteria:

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

How is the prevailing wage determined?

The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The DOL maintains a database with applicable current prevailing wage levels based on occupation and work location.

What is the H-1B cap?

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap.

Who are H-1B Cap-Exempt Employers?

Cap-Exempt employers are are not subjected to the annual H-1B visa numerical limitation as set by the US Government.

The  following classes of employers fall under the Cap-Exempt category:

  • An institution of higher education (or its affiliated or related nonprofit entities),
  • A nonprofit research organization, or
  • A government research organization

Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.

 

Our attorneys can help you determine if the H-1B visa classification is the best pathway for you.

U VISA

If you are the victim of a crime you might be able to obtain a visa through what is known as a U Visa.

The U nonimmigrant status (U Visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.

Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.

The U Nonimmigrant information is explained below:

U Nonimmigrant Eligibility

You may be eligible for a U nonimmigrant visa if:

  • You are the victim of qualifying criminal activity.
  • You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
  • You have information about the criminal activity. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf.
  • You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.
  • The crime occurred in the United States or violated U.S. laws.
  • You are admissible to the United States. If you are not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

Qualifying Criminal Activities


  • Abduction
  • Abusive Sexual Contact
  • Blackmail
  • Domestic Violence
  • Extortion
  • False Imprisonment
  • Female Genital Mutilation
  • Felonious Assault
  • Fraud in Foreign Labor Contracting


  • Hostage
  • Incest
  • Involuntary Servitude
  • Kidnapping
  • Manslaughter
  • Murder
  • Obstruction of Justice
  • Peonage
  • Perjury
  • Prostitution
  • Rape


  • Sexual Assault
  • Sexual Exploitation
  • Slave Trade
  • Stalking
  • Torture
  • Trafficking
  • Witness Tampering
  • Unlawful Criminal Restraint
  • Other Related Crimes:
    Includes any similar activity where the elements of the crime are substantially similar.
    Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes.


How do I apply for a U-Visa?

For a U-Visa, the victim may self-petition by filing :

Can I also apply for  a U-Visa if I am outside the United States?

To do this, you must:

  • File all the necessary forms for U nonimmigrant status with the Vermont Service Center.
  • Follow all instructions that are sent from the Vermont Service Center, which will include having your fingerprints taken at the nearest U.S. Embassy or Consulate.
  • If your petition is approved, you must consular process to enter the United States, which will include an interview with a consular officer at the nearest U.S. Embassy or Consulate.
  • Information about your nearest United States Embassy or Consulate can be found at usembassy.gov.

Can I apply for a U Visa for my family members?

Certain qualifying family members are eligible for a derivative U visa based on their relationship to you, the principal, filing for the U visa. The principal petitioner must have their petition for a U visa approved before their family members can be eligible for their own derivative U visa.

If you, the principal, are… Then…
Under 21 years of age You may petition on behalf of your spouse, children, parents and unmarried siblings under age 18
21 years of age or older You may petition on behalf of your spouse and children.

To petition for a qualified family member, you must file a Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient, at the same time as your application or at a later time.

What is the filing fee for a U Visa and U Visa Extensions?

  • There is no filing fee for  U Visa applications or extensions. You may request a fee waiver for any other form that is necessary for your U Visa application  by filing a Form I-912, Request for Fee Waiver, or by including your own written request for a fee waiver with your application or petition.

When Are U Visa extensions allowed?

When U nonimmigrant status is granted, it is valid for four years. However, extensions are available in certain, limited circumstances if the extension is:

  • Needed based on a request from law enforcement,
  • Needed based on exceptional circumstances,
  • Needed due to delays in consular processing, or
  • Automatically extended upon the filing and pendency of an application for adjustment (application for a Green Card).

U Visa Cap

  • The limit on the number of U visas that may be granted to principal petitioners each year is 10,000. However, there is no cap for family members deriving status from the principal applicant, such as spouses, children, or other eligible family members.
  • If the cap is reached before all U nonimmigrant petitions have been adjudicated, USCIS will create a waiting list for any eligible principal or derivative petitioners that are awaiting a final decision and a U visa. Petitioners placed on the waiting list will be granted deferred action or parole and are eligible to apply for work authorization while waiting for additional U visas to become available.
  • Once additional visas become available, those petitioners on the waiting list will receive their visa in the order in which their petition was received. Petitioners on the waiting list do not have to take any additional steps to request the U visa. USCIS will notify the petitioner of the approval and the accompanying U visa.

 

Can I applying for a Green Card with a U Visa?

You may be eligible to apply for a Green Card (adjustment of status/permanent residence) if you meet certain requirements, including:

  • You have been physically present in the United States for a continuous period of at least three years while in U nonimmigrant status, and
  • You have not unreasonably refused to provide assistance to law enforcement since you received your U visa.
  • To apply for permanent residence (a Green Card) for yourself or a qualifying family member, visit our Green Card for a U Nonimmigrant
  • PLEASE NOTE: Any qualifying family member who does not have a derivative U visa when the principal U nonimmigrant receives a Green Card is no longer eligible for a derivative U visa, but may still be eligible to apply for lawful permanent residence.
  • For information on extending your principal U visa to ensure your family member remains eligible for a U visa, please visit the T and U visa extension memorandum.

Can my family members also apply for a green card?

If the family member deriving status based on your status has met the eligibility requirements for a Green Card, they may apply for lawful permanent residence by filing their own Form I-485, Application to Register Permanent Residence or Adjust Status, and following the instructions on the Form I-485, Supplement E.

Even if your family members never had U nonimmigrant status or a U visa, they may still be eligible for a Green Card.

If the Form I-929 for your family member(s) is approved:

  • Family members in the United States may file the Form I-485 to apply for a Green Card.
  • Family members outside the United States must first visit a U.S. embassy or consulate to obtain their immigrant visa. Information for the local U.S. embassy or consulate and the procedures for obtaining a visa to enter the United States may be found at usembassy.gov.

NOTE: The Form I-929 is the form that is used to establish whether your family member is eligible to apply for a Green Card based on your U visa based lawful permanent resident status. This does not mean that your family member will receive a Green Card. Even if the Form I-929 is approved, your family member is not automatically eligible for work authorization. They are eligible to work once they have received their Green Card.

Is there a fee to file Form I-929?

There is a filing fee for the Form I-929. If you are unable to pay the fee, you may request a fee waiver by also filing a Form I-912, or by submitting a separate written request for a fee waiver.

 

If you believe that you or a family member qualifies for a U Visa, please call the Hill Law Group.

Violence Against Women Act (VAWA)

In 1994, Congress passed the Violence Against Women Act (VAWA), creating special routes to immigration status for certain battered non-citizens. Among the basic requirements for eligibility, a battered non-citizen must be the spouse or child of an abusive U.S. citizen or permanent resident. Through a self-petitioning process, the battered spouse/child may apply for immigration status without the knowledge or involvement of the abuser. Derivative status is available to certain children and parents of the principal immigrant.

If eligible, Form I-360 Self-Petition (VAWA petition) is filed with supporting documentation. There is extensive evidence that must be gathered including evidence of battery/abuse/extreme cruelty and proof of the qualifying relationship to the abuser. Immigrants who can establish the basic requirements outlined below will be given a “prima facie” determination and then be eligible for certain public benefits If the VAWA petition is approved, the immigrant is granted deferred action status in most cases. Deferred action means that removal, or deportation, proceedings will not be initiated. Applicants are also eligible for work authorization upon approval of their VAWA petition.

Once the VAWA petition has been approved, immigrants are classified into categories based on a preference system. Self-petitioners who are immediate relatives of U.S. Citizens (spouses, parents, unmarried children under the age of 21) are eligible to adjust status to a lawful permanent resident status when their VAWA petition is approved. Spouses and children of lawful permanent residents must wait for an immigrant visa to become available for their category. These petitioners will be able to obtain work authorization until they are eligible to apply for permanent residency.

The process to apply for lawful permanent residence includes a criminal check by fingerprinting and completion of a medical exam. Applicants might be barred from permanent residency if they have a record of involvement with drugs, prostitution, or other crimes, if they committed visa fraud, were previously deported, or have certain other “bad marks” against them. Waivers are sometimes available for criminal or immigration issues but intending immigrants with these complications are advised to have their cases reviewed by an immigration attorney. Battered spouses or children of U.S. citizens or permanent residents who are the subjects of deportation proceedings may also be eligible for this form of relief through VAWA cancellation of removal.

Eligibility Requirements for VAWA Self-petitioners:

The intending self-petitioner must prove that s/he is a spouse, child (unmarried and under age 21)/parent of an abused child (unmarried and under age 21), or parent who was physically battered and/or subjected to “extreme cruelty” by a U.S. citizen or lawful permanent resident spouse, parent or adult child. Such abuse may include evidence of: physical abuse, violent acts or threats of violence, sexual abuse or exploitation, verbal abuse and degradation, emotional abuse, isolation, intimidation, economic abuse, coercion or threats to take away children or have one deported. It is not a requirement to have a police report. Many victims are fearful of calling the police and this does not preclude them for filing a VAWA self-petition.

Abused spouses must additionally prove that the marriage was entered into in good faith, that the abuse occurred during the marriage, and that the marriage is still valid or was terminated less than two years prior to self-petitioning. The abuse must have occurred in the United States, and the victim must have lived with the abuser.

The self-petitioner must provide evidence of his/her “good moral character.” This usually refers to a review of the self-petitioners criminal record or other immigration transgressions. Certain arrests or transgressions may be waived if the self-petitioner can show such actions were connected to the abuse s/he suffered. Applicants should consult with legal counsel for a close review of any such arrests, convictions or transgressions.

In the case of a child applicant, the battery or extreme cruelty must have occurred at the hands of her U.S. citizen or lawful permanent resident parent.

 

Temporary Protected Status (TPS)

The Secretary of Homeland Security may designate a foreign country for Temporary Protected Status (TPS) due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.
The Secretary may designate a country for TPS due to the following temporary conditions in the country:

  • Ongoing armed conflict (such as civil war)
  • An environmental disaster (such as earthquake or hurricane), or an epidemic
  • Other extraordinary and temporary conditions

During a designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases (prima facie eligible):

  • Are not removable from the United States
  • Can obtain an employment authorization document (EAD)
  • May be granted travel authorization

Once granted TPS, an individual also cannot be detained by DHS on the basis of his or her immigration status in the United States.
TPS is a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status. However, registration for TPS does not prevent you from:

  • Applying for nonimmigrant status
  • Filing for adjustment of status based on an immigrant petition
  • Applying for any other immigration benefit or protection for which you may be eligible

PLEASE NOTE: To be granted any other immigration benefit you must still meet all the eligibility requirements for that particular benefit. An application for TPS does not affect an application for asylum or any other immigration benefit and vice versa. Denial of an application for asylum or any other immigration benefit does not affect your ability to register for TPS, although the grounds of denial of that application may also lead to denial of TPS.

I-601A – Provisional Unlawful Presence Waiver

I-601A – Provisional Unlawful Presence Waiver

This waiver forgives “unlawful presence” in the U.S. for those who would be subject to the 3 or 10 year bar once they leave the U.S. but not those who are subject to the permanent bar. Those subject to the permanent bar must wait 10 years outside the U.S.

If you are a spouse, son or daughter or a U.S. citizen or lawful permanent resident, you may apply for  a provisional unlawful presence waiver before departing the United States to appear at a U.S. Embassy or consulate for an immigrant visa interview.

However,  in order to obtain this waiver, you must demonstrate extreme hardship to a qualifying relative. Qualifying relatives must be spouses or parents who are US citizens or lawful permanent residents, but do not necessarily have to be the petitioner.

You must show that your  qualifying relative will suffer more than the usual hardship if you had to leave the U.S.. Demonstrating “extreme hardship” can be quite challenging as there is no law defining extreme hardship.

In order to be approved,  you must provide strong evidence that your qualifying relative will experience extreme hardship either in the U.S., if you are not allowed  stay in the U.S., or in your home country, if your relative accompanies you there.