15 May Options for a seaman to adjust status
Many seamen who came to the United States and married a U.S. citizen spouse but could not adjust their status to that of lawful permanent resident. The first question to answer is: Do they have Sec. 245(i) eligibility? If they are the direct or derivative beneficiary of a petition or labor certification dated April 30, 2001 or earlier and they have been in the U.S. since December 21, 2000, then they can adjust status.
However, if they have no Sec. 245(i) eligibility, then the other avenue is the latest immigration procedure of PROVISIONAL WAIVER. This provisional waiver will allow the following aliens who are married to U.S. citizens to seek waiver of unlawful presence and be able to go to their home country to apply for green card. To qualify, they must prove extreme hardship to the U.S. citizen spouse or parents if their application for permanent residence is denied. The beneficiaries of this provisional waiver will include:
1. Seamen who entered the U.S. on a C or D visa and overstayed their visa and are not beneficiaries of Sec. 245(i).
2. Those who entered without inspection and are not beneficiaries of Sec. 245(i)
3. Those who entered as Fiancée and did not marry the visa petitioner.
4. Those aliens who have lost their passports and have no proof of legal entry to the U.S.
To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:
1. Be 17 years of age or older.
2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child or parent of a U.S. citizen.
3. Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
4. Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
5. Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
8. 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.
You are not eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
1. You are subject to one or more grounds of inadmissibility other than unlawful presence.
2. DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013.
Note: The date and time that you are scheduled to appear for your immigrant visa interview at the designated U.S. Embassy or Consulate is not the date USCIS will use to determine if you are eligible to file a Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible to file a Form I-601A, even if you failed to appear for your interview or if you or DOS cancelled or rescheduled your interview for a date on or after January 3, 2013.
Instead, you may file a Form I-601, Application for Waiver of Grounds of Inadmissibility, from outside the United States after you have been interviewed for your immigrant visa, and the consular officer has found that you are inadmissible for a ground that may be waived.
3. You are in removal proceedings that have not been administratively closed.
4. At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EOIR calendar to continue your removal proceedings.
5. You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.
Note: This is not a legal advice. The Law Office of Crispin C. Lozano has the experience and expertise in helping clients apply for provisional waiver.