Entered illegally, Applying for Green Card or Citizenship

[HRQX 4,145]

Just now, Allaboutwaiting said:

Now, in reality, related to OP's case, what does this mean?

After serving the 10 year ban outside the US the 1 EWI is not an issue in itself when applying for the IV.

 

@SusieQQQ asked: "Is the EWI not a separate inadmissibility from the unlawful presence?" The short answer is No.

[Demise 1,290]

1 hour ago, sandranj said:

Your information is wrong, they can file abroad the I-601A waiver to overcome the  10-year bar.

https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers

You're thinking of I-601. I-601A has to be filed while in US, prospectively of the ban triggering upon departure, I-601 is filed after the ban already triggered (either after a consular denial, or as a part of AOS if CBP admitted you despite the ban, e.g. in error or via a 212(d)(3) waiver).

 

Still, in a case like this you'd need basically a grandparent who's a USC or LPR to use as a qualifying relative, parents seem to be married to each other, so obviously no USC/LPR spouse for either.

 

43 minutes ago, SusieQQQ said:

Question, uscis says the above can take place if 

 

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)).

 

Is the EWI not a separate inadmissibility from the unlawful presence? (edit: i think this is the 212 waiver that is also needed then?)

EWI inadmissibility in INA 212(a)(6)(A) is honestly a dead letter. It goes poof on its own the moment you leave, and it's not applied in cases where something lets you AOS after an EWI like 245(i), VAWA, Cancellation of Removal, etc, because in that case an EWI would be both a basis of eligibility and ineligibility if the ban were applied.

Edited October 14, 2021 by Demise

[SusieQQQ 11,586]

9 minutes ago, HRQX said:

After serving the 10 year ban outside the US the 1 EWI is not an issue in itself when applying for the IV.

 

@SusieQQQ asked: "Is the EWI not a separate inadmissibility from the unlawful presence?" The short answer is No.

Ok - so it’s a bar to adjustment but not an inadmissibility?

why do they need the 212 waiver then? Sorry if these are dumb questions. 

1 minute ago, Demise said:

 

 

EWI inadmissibility in INA 212(a)(6)(A) is honestly a dead letter. It goes poof on its own the moment you leave, and it's not applied in cases where something lets you AOS after an EWI like 245(i), VAWA, Cancellation of Removal, etc, because in that case an EWI would be both a basis of eligibility and ineligibility if the ban were applied.

Those exceptions don’t seem relevant to this case 

[Boiler 45,551]

Probably the most common 212 situation is being deported.

[Demise 1,290]

2 minutes ago, SusieQQQ said:

Ok - so it’s a bar to adjustment but not an inadmissibility?

why do they need the 212 waiver then? Sorry if these are dumb questions.

Departure after 180 days of unlawful presence triggers a ban, which would be the one to need a waiver. Still, unknown if they have a qualifying relative they could use for it.

 

2 minutes ago, SusieQQQ said:

Those exceptions don’t seem relevant to this case 

We're all just thinking out loud here about what options exist, whether applicable or not, until OP comes back with more details we're all basically having an academic debate.

[Allaboutwaiting 2,503]

7 minutes ago, SusieQQQ said:

Ok - so it’s a bar to adjustment but not an inadmissibility?

EWI is an ineligibility not an inadmissibility. 🤷‍♂️

Edited October 14, 2021 by Allaboutwaiting

[HRQX 4,145]

4 minutes ago, SusieQQQ said:

why do they need the 212 waiver then? Sorry if these are dumb questions.

Not Form I-212, but Form I-601/Form I-601A can be used (if eligible*) to waive the 10-year unlawful presence bar.

 

*But it looks like they are not eligible. See INA 212(a)(9)(B)(v): "The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause."

[SusieQQQ 11,586]

23 minutes ago, HRQX said:

Not Form I-212, but Form I-601/Form I-601A can be used (if eligible*) to waive the 10-year unlawful presence bar.

 

*But it looks like they are not eligible. See INA 212(a)(9)(B)(v): "The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause."

Ok got it now - I misunderstood/read your previous post too fast and thought the 212 referred to a waiver, but you were citing a section of law from the act. Thanks for explaining again!

 

So the discrepancy in who is a qualifying relative vs this post, is because the one below quotes a broad overview but if one looks at the instructions per type of bar it is only spouse and parent that are qualifying for unlawful presence?

 

2 hours ago, sandranj said:

His son can petition for his parents but the parents must file the waiver I-601A.

 

https://www.uscis.gov/family/family-of-us-citizens/provisional-unlawful-presence-waivers

 

"Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers ….

 

 

 

 

[HRQX 4,145]

4 minutes ago, SusieQQQ said:

but if one looks at the instructions per type of bar it is only spouse and parent that are qualifying for unlawful presence?

Correct. The I-601A and I-601 form instructions correspond with the relevant section of the law (i.e. 212(a)(9)(B)(v)). 

2 hours ago, HRQX said:

https://www.uscis.gov/sites/default/files/document/forms/i-601ainstr.pdf "You must show that you have a U.S. citizen or LPR spouse or parent (qualifying relative)"

https://www.uscis.gov/sites/default/files/document/forms/i-601instr.pdf

You Are Seeking a Waiver of Inadmissibility Under INA Section 212(a)(9)(B)(v) of the 3-Year or 10-Year Unlawful Presence

...

With the application, you must establish that your qualifying U.S. citizen or lawful permanent resident relative (spouse or parent) or K visa petitioner would experience extreme hardship if you were denied admission.

[aaron2020 11,651]

Here again.  Under current circumstances, the parents are not eligible to adjust status and they are not eligible for any waiver.

If one of the USC children were to enroll in the military, then it may be possible to get to be Parole in Place to get an I-94 so they have a legal admission which would allow them to adjust in the US for green cards without the need for a waiver or having to leave the US.

 

 

[Jay&Shan75 7]

I was here 20yrs before I got my gc (EWI).I filed a waiver then got an appointment for an interview at my embassy outside the US (2017). I just got approved for my citizenship on Oct 8th in NY. You have for the interview then enter legally. U will be granted a 10yr gc when u return.

[HRQX 4,145]

9 minutes ago, Jay&Shan75 said:

I was here 20yrs before I got my gc (EWI).I filed a waiver

The parent's in this case don't have a "Qualifying Relative" for the waiver.

[aaron2020 11,651]

18 minutes ago, Jay&Shan75 said:

I was here 20yrs before I got my gc (EWI).I filed a waiver then got an appointment for an interview at my embassy outside the US (2017). I just got approved for my citizenship on Oct 8th in NY. You have for the interview then enter legally. U will be granted a 10yr gc when u return.

Who got you the waiver?  A US citizen spouse?

[MaryLoves 5]

Sorry I didn't think there were so many new posts on here!

 

I read everyone's posts and replies, and thank you all a lot for trying to figure this out for me, and for my friend. 

 

But it seems like the only option for the parents to adjust status being in the US is, for their USC son or daughter to join the military force? (Which none of them wants to.)

 

Also, I have asked my friend to ask her parents to ask the "attorney" what path they can take. I'll keep you guys updated once I get this info. 

 

Finally, after all, do her parents qualify for I601A? 

 

 

[HRQX 4,145]

2 hours ago, MaryLoves said:

Finally, after all, do her parents qualify for I601A?

Does your friend have USC or LPR grandparent(s)? If not, the parents do not qualify for the waiver.

Edited October 20, 2021 by HRQX