Who is Eligible for a Provisional Waiver?
- Has an I-130 approved as an immediate relative;
- Is inside the United States;
- Is age 17 or older,
- Can prove that their U.S. citizen spouse or parent will suffer extreme hardship (note that hardship to children is not considered).
Who does not qualify for a Provisional Waiver?
An individual is not eligible for a stateside I-601A waiver if he or she:
- Was convicted of a crime or engaged in conduct that makes him or her inadmissible into the U.S.,
- In in removal proceedings (unless it is administratively closed),
- Has an outstanding order of removal,
- Has a permanent ban on their record, or
- Was scheduled prior to January 3, 2013, for a consular interview on the immediate relative petition that is the basis for the provisional waiver application.
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People who enter the United States without being “inspected” by a U.S. immigration officer are generally not able to obtain permanent residence while in the U.S, unless that person falls under the narrow 245(i) exception. Thus, most people who enter without inspection must leave the U.S. and complete the process for their permanent residency at the U.S. consulate abroad.
A 1996 change in immigration law created what are known as the “unlawful presence bars,”. Leaving the U.S. to pursue residency turned into applicants being denied entry into the United States for 3-10 years.
Waivers of the 3-10 year bars are available only to people who can show that either their U.S. citizen or resident spouse or parents will suffer “extreme hardship” should they be denied reentry into the U.S. Before the new provisional waiver change, applicants had to exit the U.S. and submit this difficult waiver while they were outside of the country, away from their family. The length of time families were broken apart was far too long. If the waiver applications were denied, the family member was stuck outside the U.S for 3-10 years.
The new provisional waiver change will greatly reduce the separation from family members. Under the new change, applicants may submit their waiver application while remaining here inside the United States. If the waiver is approved (the greatest challenge of this process), they may continue with their residency application. If it is denied, they may resubmit the application until they get an approval. Once approved, they will have an interview at the American consulate in their home country. Since the waiver is already approved, the trip back home be a very short one and the risk of being barred reentry is greatly reduced. Because this process still requires one to exit the country, it is imperative to obtain legal representation from a qualified immigration attorney to make sure the applicant will come back – and soon.
Who is an immediate relative?
An immediate relative is a person who fits into one of the following categories: (1) has a spouse who is a US citizen; (2) has a parent who is a U.S. citizen, if the individual is under age 21 and unmarried, or (3) has a son or daughter who is a U.S. citizen, if the son or daughter is over age 21.
Even though a parent may have a U.S. citizen son or daughter over the age 21, they will not qualify for the provisional waiver if they do not have a U.S. citizen spouse or parent to prove extreme hardship. Unless the parent is protected under 245(i), parents who entered without inspection who do not have a US spouse or parent are not eligible for immigration benefits.
What happens if a provisional waiver application is denied?
People whose applications for a provisional waiver are denied do not need to depart the U.S. to complete consular process. The Department of Homeland Security (DHS) has said they will not initiate removal proceedings against people whose applications are denied, unless they have a criminal history, committed fraud, or pose a threat to public safety.
What is “Extreme Hardship”?
“Extreme hardship” is very vaguely defined as greater than the normal hardship the qualifying relative can be expected to experience if the alien is denied admission. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the alien. It is not enough to say that the qualifying relative will miss the alien’s company as this is considered “normal” hardship, not extreme hardship.
What crimes makes a person inadmissible into the U.S.?
Certain crimes will make a person inadmissible in U.S., including crimes of moral turpitude (such as theft), drug offenses, money laundering, prostitution and two or more offenses where the aggregate sentence actually imposed is 5 years or more.
Are there grounds of inadmissibility for which a waiver is not available?
There are several grounds of inadmissibility for which no waiver is available under the following sections of law:
- Permanent Ban: INA § 212(a)(9)(C) applies if the alien was unlawfully present for at least one year in the aggregate after April 1, 1997, departed and returned or attempted to return without inspection OR was deported/removed at any time, left and then returned after April 1, 1997. If you are not sure whether you were formally deported or just refused entry, run an FBI fingerprint check (http://www.fbi.gov/hq/cjisd/fprequest.htm). The FBI report will list all deportations.
- False claim of citizenship: Applies to aliens who have made a false claim of citizenship after September 30, 1996 to any state or federal government official for any purpose or benefit under state or federal law. Various agencies involved in Immigration are split on whether a false claim made by a minor or made by another on behalf of a minor will render one inadmissible on this ground. Currently the consulate in Ciudad Juarez makes no exceptions for minors. Beware that this section of law is very broad.
- In absentia order for removal: If the applicant has an in absentia order for removal, he will not be eligible to apply for a waiver for five years from the next exit from the US. No exception for minors.
- Nearly any drug conviction: The only drug-related crime for which a waiver is available is a single incident of simple possession of marijuana of less than 30 grams. Note: There is a limited exception under the Federal First Offender Act (FFOA) if a rehabilitative program was successfully completed before July 14, 2011.
- Suspicion of drug trafficking: The consulate only needs ‘suspicion’ of trafficking. No conviction, confession or hard evidence is required.
- Prior gang membership: If the applicant was previously a member of a gang, regardless of the proof of rehabilitation, he will not be eligible to apply for a waiver.
- Deportation of a permanent resident for aggravated felony: This ground only applies to former permanent residents.
- Prior frivolous asylum claim: No waiver ever. Finding must be made by an immigration judge. Only applies if the original asylum claim was made after April 1, 1997.
- Prior marriage fraud: Can never again get an I-130 approved. If the alien’s new immigrant visa is based on a different ground, such as employment, then a waiver is theoretically available, but unlikely to be approved unless you can prove that the prior marriage was, in fact, real.
Does an applicant need an attorney to help file for the waiver?
Applying for a green card through this process will require the person to submit forms and paperwork at three different stages: (1) the immediate relative petition state (I-130), (2) the waiver application state, and (3) the consular processing stage, which includes an interview. While each case is different, the waiver application will be the most complicated part of the process for most applicants. Proving that a family member will suffer “extreme hardship” is a challenging task that involves a thorough review of that family’s financial, medical, and mental heath states and histories. An attorney can help you assess whether there are any other issues that might prevent you from being able to return to the U.S if you use this process to apply for a green card. If you need legal assistance, consult only with a qualified immigration attorney.
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