What is the provisional waiver?
Generally, a person in the United States who wishes to apply for permanent residency, must either obtain an immigration visa abroad through consular processing, or apply to adjust their status in the US. People who entered the US illegally are typically ineligible to adjust their status in the US and, in order to obtain permanent residency, must leave the US for immigrant processing at a consulate abroad. However, because these people are in the US illegally, their departure from the United States will trigger an inadmissibility ground based on the accrual of unlawful presence in the United States.
The Immigration service may waive this inadmissibility ground for an individual who can demonstrate that the refusal of their admission to the United States will result in extreme hardship to their US citizen or LPR spouse or parent. Prior to the creation of the provisional waiver, an individual who triggered the bar by leaving the US to continue with their visa processing, would apply for a waiver by filing Form I-601 with the Immigration Service. However, the waiver form could only be filed after having attended the interview abroad and after the applicant was found ineligible for a visa by the consular officer. Those who applied for these waivers were forced to remain outside of the US for several months while waiting on a decision about their waiver application.
In 2013, in an effort to keep families together and avoid long processing times abroad, the Department of Homeland Security created the provisional waiver. The provisional waiver provided that certain parents, spouses and children of US citizens could apply for a waiver of the unlawful presence before leaving the United States for their immigrant visa interviews.
Who qualifies for a provisional waiver?
Anyone who is eligible for an immigrant visa may be able to apply for a provisional unlawful presence waiver. In addition to having an approval immigrant visa, the applicant must be:
· At least 17 years of age
· Physically present in the US at the time of applying
· Otherwise admissible to the United States. In other words, if they applicant also requires a waiver for their criminal history, fraud, or other grounds, they cannot apply for the provisional waiver.
· Prove that, if not granted the waiver, his or her US citizen or lawful permanent spouse or parent will suffer extreme hardship as a result.
What is “extreme hardship?”
As stated above, the applicant must be able to prove that their US citizen or lawful permanent spouse or parent will suffer extreme hardship if their waiver application is not granted. In deciding these case, the immigration service will consider how the separation of family members will affect the qualifying relative. The immigration service will consider factors such as the emotional trauma suffered from separation, loss of employment or education opportunities, and access to medical care and other severe changes in the life of the qualifying family member resulting from separation or the conditions in the applicant’s home country.
It is important to note that an applicant cannot rely on the hardship faced by their child when filing a provisional waiver application. If the applicant’s approved visa is based on their relationship with their US citizen child who is over 21, they must still have a US citizen or permanent resident spouse or parent who will suffer hardship in order to qualify for the provisional waiver.
What is the process?
The first step in the process is to file an immigrant visa application. Once approved, the approved visa petition will be transferred to the National Visa Center and the applicant will receive notice to pay the visa fees. Once paid, the applicant can submit the provisional waiver. It can take several months for the provisional waiver to be approved.
Once the provisional waiver is approved, the applicant will need to continue processing with the National Visa Center by submitting all required financial and civil forms and documents. After these documents are processed and complete, the National Visa Center will schedule the applicant for an interview at the consulate in their home country. The applicant can remain in the United States for all of these steps.
When the interview date approaches, the applicant will need to travel back to their home country to appear in person at their appointment. If the visa is approved, the applicant will need to wait for their visa to be processed and they will then be allowed to travel back to the United States. After they return to the United States, they will receive permanent resident status.
If the consulate finds that the applicant is ineligible for a green card based on their criminal history, prior immigration violations or other inadmissibility issue, they can revoke the applicant’s provisional waiver.