By Steven J. Malm and Robert L. Reeves

The anticipated “provisional waiver” has arrived.  Last year at this time came the announcement from the U.S. government that, for some intending immigrants, application for waiver of the 3 and 10-year bars could be made from within the United States before departing the country for a visa interview.  The goal was to limit prolonged family separation.  The process is now formalized.  Applications for provisional waivers can be filed as soon as March 4, 2013. 

The immigrant visa applicants who will benefit from the provisional waiver are immediate relatives of U.S. citizens who must consular process to obtain green cards.  Immediate relatives are defined as parents whose U.S. citizen children have attained the age of 21, spouses of U.S. citizens, and unmarried children of U.S. citizens under the age of 21.  Immigrants who must consular process include those persons ineligible to obtain their green cards from within the United States through adjustment of status.  Unless an exception applies, the following classes of persons are ineligible for adjustment of status and must consular process:  (1) those who entered the United States without inspection by an immigration officer, (2) who came in as crewmen, or (3) who entered the United States on a fiancé visa but did not marry their petitioner.   

The provisional waiver limits the period of family separation during the waiver process.  Prior to the provisional waiver, immigrant visa applicants could submit their waivers only after first attending an interview abroad.  The waiver would take months to adjudicate.  If it was denied, the process could take years longer.  And there was always the threat of having to remain outside the U.S. for the entire 10 year period. 

Under the provisional waiver program, the waiver can be filed from within the United States before departing.  The applicant attends the embassy interview equipped with an approved waiver and confidence that the stay abroad will be a short one.  

The published provisional waiver rule expands its availability beyond that announced last year.  The final rule clarifies that persons in removal proceedings whose court cases are administratively closed are eligible for the provisional waiver program.  While there is no appeal of a denied provisional waiver, it is possible to file a new application.  And, if the waiver is denied, USCIS will not automatically refer applicants to removal proceedings.  
 The provisional waiver only helps immediate relatives of U.S. citizens.  So, a spouse of a lawful permanent resident must still apply outside the country.  The provisional waiver cannot be “stacked” with other waivers to cure other grounds of inadmissibility.  Anyone with criminal convictions or prior misrepresentations will have to await adjudication of a waiver from abroad.  Also, persons whose interview letter was issued on or before January 3, 2013 must also continue their process from outside the U.S.   
The waiver still requires the intending immigrant to show that the qualifying relative (in this case, the U.S. citizen spouse or parent) would suffer extreme hardship if the alien were not permitted to get their green card and live in the United States.  Children of the intending immigrant are not eligible to be qualifying relatives for any unlawful presence waiver. 
Extreme hardship is a high but meetable standard.  It is based on a number of factors that must be specifically addressed in the waiver.  It is the alien’s burden to prove the hardship.  It is important to remember that the waiver will be decided solely on the basis of the paperwork.  There is no opportunity to answer questions or add additional information at an interview.  There won’t be any.  Therefore, the evidence must be extremely persuasive and thoroughly supported by objective documentation.  The presentation is as important as the information.  The easier it is for the officer to find the persuasive information, the more likely it is that the waiver will be granted.  An experienced immigration lawyer will explore all the factors in depth and the various types of evidence that will meet the standard. 

That the provisional waiver is upon us is great news.  It is a step in the right direction and will benefit many. It is hoped that in the future it will be expanded to include intending immigrants with lawful permanent resident petitioners and qualifying relatives. For now, immediate relatives of United States citizens who cannot adjust their status in the United States should take advantage of this wonderful opportunity to legalize their status with a minimum of separation from their loved ones.