A new USCIS policy would allow certain applicants to apply for adjustment of status without having to file a waiver for unlawful presence. Under U.S. immigration law, an individual who has lived in the U.S. without status (known as “unlawful presence”) for longer than six months but less than a year is barred from reentering or obtaining a green card for a period of three years. The bar is ten years if the person has been unlawfully present for longer than a year.
For several years, USCIS has inconsistently applied this prohibition to applicants even though more than ten years have passed since filing their applications, requiring them instead to file a waiver or prove that they were outside the U.S. serving the required period of time.
According to this new policy, this is no longer the case. The time that a person is barred from applying continues to run even if the applicant is residing inside the U.S. USCIS will no longer require a waiver if the period has run, regardless of the applicant’s location. But you may be required to file a waiver if you file your application within the 3-or 10-year period since your last departure. So the person must meet the waiver requirements in those instances.
This issue is particularly complex. If you believe this policy could help you or have questions about it, please check with an immigration lawyer first.