Immigration: Illegal Presence

With the quickly evolving legal landscape surrounding immigration law, those who are illegally present in the United States have found themselves surrounded by uncertainty and fear.  For those people, preventing and defending against deportation (or removal) is something for which you should immediately consider and be prepared.

Every situation is truly unique.  Generally speaking, a person can accumulate unlawful presence by:

(1) entering the US without inspection;

(2) by overstaying the expiration date on his I-94; or

(3) by violating his status if he is notified by the government that he has done so.

If you are here unlawfully, a waiver may be obtained by submitting Form I-601 to the USCIS and demonstrating that the person’s US citizen or permanent resident spouse or parent(s) would suffer, among other things, “extreme hardship” unless the person was granted a waiver.  Pursuant to USCIS Eligibility Criteria[1], you may qualify for such a waiver if you fulfill all of the following:

  • Be physically present in the United States to file your application and provide biometrics.
  • Be 17 years of age or older.
  • Be in the process of obtaining your immigrant visa  and have an immigrant visa case pending with Department of State (DOS) because you:
    • Are the principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee;
    • Have been selected by DOS to participate in the Diversity Visa (DV) Program (that is, you are a DV Program selectee); or
    • Are the:
      • spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to DOS, or
      • the spouse or child of a DV Program selectee (that is, you are a DV Program derivative)
  • Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen or Legal Permanent Resident spouse or parent.
  • Believe you are or will be inadmissible only because of a period of unlawful presence in the United States that was:
    • More than 180 days, but less than 1 year, during a single stay (INA section 212(a)(9)(B)(i)(I)); or
    • 1 year or more during a single stay (INA section 212(a)(9)(B)(i)(II)).
  • Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 CFR 212.7(e) and the Form I-601A and its instructions.


While this list encompasses requirements to apply for a waiver, should you not qualify under the terms above it is still recommended that you seek legal advice as soon as possible.  Call King Law Offices to speak with an immigration attorney who can assess your individual case and develop a plan to protect you and your family.