BY ATTORNEYS BEN LOVEMAN & NANCY E. MILLER   The initial excitement over the provisional waiver has been tempered by new data from the National Benefits Center that about 39% of the applications are being denied.  However, another way of looking at it is that almost 59% are being approved.  Which category you are in may well depend on the quality of the application you file.  And the quality of your application may depend on the experience of the one who prepares it.

Not everyone who is eligible for a green card is also eligible to complete the process in the United States.  Entry without inspection or expiration of a visa (as well as other reasons) may require the alien to complete the process at the U.S. Consulate.  Determination of whether you are eligible to complete the process in the United States must be made by a knowledgeable and experienced immigration attorney.

The unlawful presence bar may be invoked when the alien leaves the U.S. to attend their consular interview.  While most waiver applications cannot be filed until the alien is outside the United States, the provisional waiver process allows applicants to apply for and receive a decision on their unlawful presence waiver prior to departing the United States. With an approved waiver, the alien departs the U.S. with a reasonable expectation that they will be able to return after only a few weeks following their visa interview at a Consulate.

To be eligible for the provisional waiver process a person must be the beneficiary of a petition filed by their U.S. citizen spouse, adult child, or in limited circumstances, parent.  They must be physically present in the United States when the application is filed, complete biometrics processing in the United States, establish that the refusal of the waiver would result in extreme hardship to a U.S. citizen spouse or parent, and be otherwise admissible, including establishing that there is no “reason to believe” that the applicant might be inadmissible on other grounds. This last ground permits the officer to deny the waiver on no more than a suspicion.

Almost half of the denials (48%) have resulted from the United States Citizenship and Immigration Services’ (USCIS) determining that there is “a reason to believe” that an applicant might be inadmissible on grounds other than unlawful presence.  An additional 41% of applications have been denied based on a finding that the applicant failed to demonstrate that extreme hardship would result to the qualifying relative if the application were denied.  What do these denials have in common?  In both situations, the applicant failed to meet his burden of persuasion.

Addressing the “reason to believe” potential ground of inadmissibility requires a thorough analysis of the legal implication of the alien’s past.  The past events can include prior arrests, convictions, suspicion of gang membership or other criminal activity, and prior misrepresentations. This list is not exhaustive.  Recognizing the problem is the first step.  These problems need to be addressed to satisfy the adjudicating officer that, what may initially appear to be a ground of inadmissibility is not one. The type of evidence and the legal argument must be strong enough to nullify the officer’s suspicion that another ground of inadmissibility exists.

Hardship is a complex concept to define and quantify.  At what point does hardship cease being that which is acceptable to the government and cross over to extreme?  These are questions that the adjudicator asks himself.  To adequately answer it, all aspects of the qualifying relative’s life and relationship to the beneficiary must be considered.  The individual and cumulative, actual and potential, hardship that the qualifying relative might suffer if the applicant is forced to depart the United States or which would result if the qualifying relative were to relocate with the applicant outside the United States must be adequately addressed.   As with the reason to believe, recognizing the problem is only the beginning.  Strong, persuasive documentary evidence and argument in support of the application is essential to success.

The provisional waiver is a discretionary application.  There is no appeal of a denial.  The only option upon denial is to file the regular waiver while outside the United States.  The statistics show that the ability to get a grant depends on the strength of the application.  Clearly, the application (and your future) should be placed in the hands of an expert.  If you or a loved one is considering a provisional waiver, make sure the lawyer you retain has a proven track record of success in seeking these waivers before USCIS.  The length of your wait outside the United States could depend on it.

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