By Steven J. Malm and Robert L. Reeves

The “provisional waiver” has arrived.  For some intending immigrants, an application for a waiver of the 3 and 10-year bars can be made from within the United States before departing to a U.S. consulate in the immigrant’s home country for a visa interview.  The purpose of the “provisional waiver” is to limit prolonged family separation.  Applications for provisional waivers can now be filed.

The “provisional waiver” benefits immediate relatives of U.S. citizens who are currently present in the U.S., but are not permitted to apply for a green card in the United States. Immediate relatives are defined as spouses of U.S. citizens, parents of over-21-year-old U.S. citizen sons and daughters, and unmarried children (under 21) of a U.S. citizen. Intending immigrants who are not permitted to apply for a green card in the United States (absent an exception) include those who entered the U.S.:  (1) without inspection by an immigration officer (e.g., illegal border crossing);  (2) as a crewman; or, (3) with a fiancé visa but did not marry the fiancé petitioner within 90 days of entry (or at all).
The provisional waiver eliminates any period of family separation during the waiver applicatioin process.  Prior to the provisional waiver, immigrant visa applicants could file an unlawful presence waiver only after first attending an interview abroad.  The waiver would take months to adjudicate.  If the Department of Homeland Security denied the waiver, the process would be extended by years of appeals and re-applications.  If the waiver was never approved, the applicant could be required to remain outside of the U.S. for up to 10 years.

Under the provisional waiver program, the waiver can be filed from within the United States before departing.  The applicant attends the consulate interview equipped with an approved waiver, and confidence that the stay abroad will be a short one.   The provisional waiver is an option even for persons who are currently in removal (deportation) proceedings. Persons in removal proceedings can request that the court administratively close the matter in order to apply for the provisional waiver.  While there is no appeal of a denied provisional waiver, it is possible to file a new application.  And, if the waiver is denied, USCIS will not automatically refer applicants to removal proceedings.   The provisional waiver only applies to immediate relatives of U.S.
citizens.  A spouse of a lawful permanent resident, for example, must still apply outside the country, unless that person is eligible for adjustment of status in the United States. The provisional waiver cannot be “stacked” with other waivers to cure other grounds of inadmissibility.  Anyone with criminal convictions or prior misrepresentations will have to await adjudication of a waiver from abroad.  Also, if the consulate issued an interview letter on or before January 3, 2013, that person must also continue their process from outside the U.S.

The waiver still requires the intending immigrant to show that the qualifying relative (in this case, a U.S. citizen spouse or parent) would suffer extreme hardship if the alien were not permitted to immigrate to the United States.  Children of the intending immigrant are not considered “qualifying relatives” for purposes of the unlawful presence waiver.

Extreme hardship is a high but meetable standard.  It is based on a number of factors that must be specifically addressed in the waiver application.  It is the alien’s burden to prove the hardship.  It is important to remember that the waiver will be decided solely on the strength of the application, legal briefs, declarations, and supporting evidence. There is no opportunity to answer questions or add additional information at an interview.  Therefore, the evidence must be extremely persuasive and thoroughly supported by objective documentation.  The presentation is as important as the information.  The easier it is for the officer to find the persuasive information, the more likely it is that the waiver will be granted.  An experienced immigration lawyer will explore all the factors in depth and the various types of evidence that will meet the standard.

The provisional waiver is a step in the right direction and will benefit many. It is hoped that in the future it will be expanded to include intending immigrants with lawful permanent resident petitioners and qualifying relatives. For now, immediate relatives of United States citizens who cannot adjust their status in the United States should take advantage of this wonderful opportunity to legalize their status with a minimum of separation from their loved ones.

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