The provisional waiver process has revolutionized immigration law. Whereas the spouses of United States citizens who entered the country illegally and wished to fix their immigration status had to travel to their home country and risk not being able to come back for ten years, the provisional waiver has been able to take a lot of the risk out of this process for thousands of families.
The provisional waiver is meant to solve the problem of unlawful presence. Under U.S. immigration law, an individual who entered the U.S. without inspection cannot seek residence in the U.S. even if she is married to a United States citizen. Such an individual can only seek residence at the U.S. Embassy in her home country. However, by departing the U.S. after having been here illegally for more than a year, the applicant for the visa becomes subject to the ten year bar on admission. Historically, a waiver could be sought at the U.S. Embassy after the individual applied for a visa. The application could take up to a year before being decided. If the waiver was granted, the individual could return to the U.S. If not, the individual was obligated to wait outside the country for the ten year period, being separated from a spouse, children, employment and their home. Understandably, few were willing to risk that.
The purpose of the provisional waiver was to encourage more people to apply for residence by making the waiver available while the applicant was in the United States. Rather than proceeding abroad with the uncertainty of whether a waiver would be granted, an applicant can now apply for the waiver while in the U.S. prior to departing the U.S. If the provisional waiver is approved, the applicant can confidently proceed abroad knowing that the waiver and the visa would be issued. If the waiver is not approved, the applicant is under no obligation to depart the U.S. at any specific time. By eliminating the risk that a person might be stranded abroad and separated from family and home, the provisional waiver allows immigrants married to American citizens to obtain lawful status.
In order to apply for the provisional waiver, the applicant must already have an approved I-130 Immigrant Petition by the U.S. citizen spouse. At that point, the immigrant can apply for the waiver with the U.S. Citizenship & Immigration Service. Individuals with certain convictions, individuals in removal proceedings or with removal orders and individuals who have committed fraud are some, but not all, of the individuals who may not seek the waiver.
The waiver is sought on form I-601A with the CIS. Applicants must show that denying them a visa would cause extreme hardship to their U.S. citizen spouse and that they merit a favorable exercise of discretion. As a general rule, “extreme hardship” refers to hardship beyond that normally experienced by a family when an individual is removed from the U.S. We have written in detail about the nature of the extreme hardship determination in our Waivers of Inadmissibility page. The basic fact regarding hardship is that there is no single formula and there is no substitute for a detailed conversation with an attorney about the specifics of your case.
Once the I-601A provisional waiver has been approved, the case gets prepared for an interview at the U.S. Consulate abroad. The State Department will schedule an interview for the applicant in the applicant’s home country. As a result of this interview, we have seen multiple clients go home for the first time in many years for tearful and joyous reunions with families. But with the provisional waiver process, these families know that the immigrant can return to her home in the U.S. safely and promptly.
Benach Collopy has successfully obtained several provisional waivers since the program went into effect in March 2013. Please contact us to discuss your eligibility for the provisional waiver.