Provisional Waiver of Unlawful Presence Goes Into Effect March 4, 2013


The United States Citizenship and Immigration Service announced this week that it will begin accepting applications for provisional waivers on March 4, 2013. This new procedure will allow certain applicants who are immediate relatives of US citizens, such as spouses and certain children, to apply for a waiver of their unlawful presence prior to departing the United States to attend their immigrant visa interview at a consulate in their home country. The waiver will be decided while the applicant is in the US and only when the waiver is approved will the applicant need to travel to his or her home country to attend the visa interview. The current procedure requires the applicant to wait outside the US while the waiver is adjudicated, which can take several months or more, so the new process will greatly reduce the stress and heartache of separation. It is important to remember that only unlawful presence in the US can be waived (forgiven) with the provisional waiver and applicants who have other bars to reentry, such as criminal convictions or previous immigration violations, will not be able to use the new waiver procedure to forgive those, and will instead need to apply via the current route of waiting outside the US for a decision. In order to apply for the provisional waiver, applicants must have an immigrant petition approved on their behalf, and they must have consular process with the Department of State initiated but no interview yet scheduled. Also, those applicants who are in removal/deportation proceedings will need to petition the court to get the proceedings administratively closed before they can seek the waiver. In order to win on the waiver application, the applicant must show that his or her US citizen spouse or parent in certain situations, would suffer “extreme hardship” if the family member were deported from the United States. Factors considered for extreme hardship include severe level of separation, economic hardship, medical conditions which are exacerbated by separation and which may have no treatment in other country, family and community ties in the US. It is important to note that only hardship to the US citizen is considered and not hardship to the foreign applicant. The aid of a qualified social worker or psychologist to document hardship is often very helpful and provides additional credibility. The provisional waiver, in and of itself, does not grant any immigration status and must be carefully considered prior to applying. As always, seeking advice from a qualified immigration attorney is crucial.


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