Effective March 4, 2013, certain waiver applications, previously
only available by application made outside the US have become
available on a provisional basis by application made here in the US.
The new law will benefit certain family members of US citizens
(particularly spouses and unmarried children under age 21)
who are ineligible to receive green cards within the United States
because they face a three (3) or ten (10) year bar on their re-entry
due to the fact that the previously spent 6 months or more in the
US without authorization, and did not make a legal entry when
they last entered the US.
Such family members are only able to receive green cards outside
the US after the US citizen obtains an approved immigrant petition
and a special waiver has been approved. To obtain a waiver an
applicant must demonstrate that the US citizen spouse or child will
suffer an extreme hardship if the family member is not allowed to
return to the US during the period that they are barred. Under
prior law, the waiver could only be applied for after the family
member had departed the US, and the process could take up
to a year to be processed, during which time the applicant was
required to wait outside the US. If the waiver was denied, the
family member was prohibited from re-entering the US legally
for anywhere from three to ten years. As a result of the dangers of
being stranded and separated from their families few people took
the risk of returning home and applying for the waiver. As a result
a whole class of individuals related to US citizens remained in
limbo unable to legalize their status without significant risk.
The law as it now exists permits the US citizen to submit the waiver
application while the foreign national relative is still in the United
States, and the relative will be allowed to wait in the US until a
decision on the waiver is reached. If the waiver is approved, the
relative is still required to leave the US to obtain their green card
abroad, but with the benefit of knowing that the waiver application
has already been provisionally approved. To take advantage of
the new law, called the provisional waiver process, the US citizen
must first have filed and obtained approval of an immediate relative
petition from USCIS and started the immigrant visa process
through the US Consulate in their home country.
Those who were already near the end of their consular processing as
of January 3, 2013 are ineligible for the provisional waiver and must
file the waiver under the prior law, i.e., after they have departed the
US. Another requirement of eligibility for the provisional waiver
is that the foreign national must be present in the US at the time
the waiver application is filed, and must have fingerprints taken
through USCIS. Those who are in deportation proceedings must
have the proceedings closed before they are eligible to apply. It is
important to note that those foreign nationals who are ineligible
to receive a green card for a reason other than unlawful presence
in the US (such as a criminal conviction or misrepresentation) are
not eligible for the provisional waiver and must follow the regular
waiver process as it existed under the old law.
Having an approved provisional waiver does not give the foreign
national any lawful status in the US and does not mean that a
green card can be obtained within the US. The new law also does
not change any of the existing standards for granting a waiver,
and extreme hardship must still be shown in order to get a waiver
approved. Even after approval of a provisional waiver within the
US, it is still possible that a foreign national may not receive a
green card if at the time of the consular interview other factors of
inadmissibility to the US are discovered.
The waiver process is a complex and nuanced area of immigration
law. We suggest that you consult with an experienced immigration
attorney, such as counselors at Fletcher Tilton, PC, prior to
commencing the immigrant process for your family member.
