Provisional Waiver: A Real Relief!

By Robert L. Reeves & Nancy E. Miller

The debate on the Immigration Reform Bill will begin this week in the Senate.  Republicans in the House are talking about defunding DACA.   Clearly, the future of these aspects of immigration law are unknown.  What we do know is that there is some relief that has become a reality.  Those who are eligible should take advantage of that now. 

After months of waiting, the Provisional Unlawful Residence Waiver is a reality.  As of March 4, 2013, aliens who are eligible for green cards but don’t qualify to complete the process in the United States have been able to obtain their waiver of the 10-year unlawful presence bar in the United States if they can prove extreme hardship to their United States citizen parents or spouse.  While they will still need to obtain their green cards through consular processing, they will leave the United States with the certainty that their waiver has been granted and the reasonable expectation that their time outside the United States will be a matter of weeks rather than months or years.  It is estimated that as many as 1 million individuals will be eligible to benefit from this significant change in the processing of unlawful presence waivers. 

 Immigrants who entered United States without inspection, who lost proof that they were lawfully inspected and admitted into the United States, who entered the United States as crewmen, and who entered the United States as fiancé(e)s but did not marry their U.S. citizen petitioner, are not eligible to apply for permanent residence (green card) from within the U.S.  They must first return to their home country and be processed through the U.S. Embassy. However, when they leave the U.S. they automatically trigger a bar of up to 10 years for overstaying. They must then apply for a waiver of that bar at the U.S. Embassy.  This holds true even if they are married to a U.S. citizen. 

Many immigrants in this situation faced an incredibly difficult decision – remain in the United States illegally or leave the United States to apply for their green card and a waiver of their unlawful presence at the U.S. Embassy abroad with the possibility that the waiver could be denied and they could be stuck outside the United States for the next 10 years.   Even for those granted the waiver, the time outside the United States waiting for the decision could be 6 months or a year.  That is a long time to be separated from a loving spouse, an elderly parent or a young child. 

The provisional waiver rule alleviates this Draconian Choice by allowing prospective immigrants to obtain their unlawful presence waiver within the United States. 

Only spouses and children of U.S. citizens are eligible for the provisional waiver.  In addition, the applicant must be inadmissible to the United States only because of unlawful presence, have an approved immigrant visa petition from his or her U.S. citizen family member, be physically present in the U.S. at the time the application is filed, and have biometrics taken in the U.S. in order to qualify for the program. Applicants whose waiver applications have been denied or withdrawn may file a new application. 

Individuals in removal proceedings may file if their court case has been administratively closed and has not been recalendared at the time of filing for the waiver.  After the waiver is granted, they may file to terminate their court proceeding. This last step is important to avoid an unintentional removal order. 

Unfortunately, immigrants who have outstanding deportation orders, or are not physically in the United States are not eligible for the provisional waiver.  The provisional waiver process is also not applicable for grounds of inadmissibility for prior misrepresentation or criminal convictions.   And, while the unlawful presence waiver is available for those with Lawful Permanent Resident parents or spouses, the provisional waiver process is not.  Currently, those whose qualifying relative are green card holders must still apply for the waiver after they have left the United States and wait outside for it to be adjudicated.  Whether the provisional waiver will be expanded remains to be seen. 

The filing or the approval of a provisional unlawful presence waiver will not confer any legal status on the applicant in the United States.  Approval of the waiver does not protect against additional unlawful presence, authorize entry into the United States without a visa or other entry document, provide employment authorization, or protect the applicant from being placed into removal proceedings.  It also does not change the legal standard for ultimately being granted the waiver – the applicant must still demonstrate extreme hardship to his or her U.S. citizen spouse or parents.

Anyone who is now or may soon be eligible to obtain a green card through consular processing should consult an experienced and knowledgeable immigration lawyer about this wonderful path to legal status without significant separation from family.