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Generally, if a US Citizen or Lawful Permanent Resident petitions for an immigrant spouse, they will be eligible to apply for a greencard if they live in another country. If the same immigrant spouse entered the United States illegally without a visa (which is different from a person that entered lawfully with a visa and overstayed this visa--the process for this petition is different), this person must obtain an "unlawful presence" waiver. This waiver is called a provisional waiver because it is not fully granted until the immigrant actually departs the US for a scheduled visa interview at the US consulate in his or her country. After this interview, the immigrant is granted a visa to enter the US as a permanent resident. The immigrant is not given a green card at the time of the interview, or the entry. They are given a visa package that they must turn over at the airport upon arrival to the US. This completes their application process. The person is allowed to enter and weeks later, this person receives the actual green card.
In January 2013, USCIS announced a new process of applying for provisional waivers or an "unlawful presence" waiver of inadmissibility for certain applicants who are ineligible to submit an application for adjustment of status in the US. Most individuals who will be requiring the provisional waiver are those individuals who have entered the US without inspection, are married to a US citizen and who have been physically present in the US in an unlawful status in excess of one year.
Applicants who may be eligible for a provision waiver are eligible to obtain resident status through an immigrant visa made available by virtue of their relationship as the spouse, parent or unmarried child (under 21) of a US citizen. The Immigration and Nationality Act defines these individuals as “immediate relatives.” However, the applicant cannot apply for resident alien status in the US because of the manner by which the applicant last arrived in the US.
So the applicant may be eligible to return to their native country and process an application for an immigrant visa through the US Consulate Office in that country. However, as a result of the applicant’s extended period of time in the US in a period of “unlawful presence,” the applicant will be rendered “inadmissible” to the US upon their departure and will be ineligible to return for a period of ten years from the date of departure. Now the system is based on a good idea, that is that immigration policy should provide limited pathways to resolve an applicant’s status where the individual violated US law upon their arrival to the US or otherwise violated the terms of admission under certain visas.
The solution that has been in place for the past 15 years is that the applicant will be required to return to the U.S. Consulate and then apply for an immigrant visa at which point the applicant will be denied because of the lengthy period of unlawful presence in the US. Many of these individuals are eligible for a “waiver” of inadmissibility which will permit the applicant to return to the US despite the existence of the ground of inadmissibility but these applications can take an extended period of time to process.
In an effort to relieve some of the difficulties and hardships that were faced by families with these problems, the Obama Administration introduced new rules and permitted eligible applicants to submit a request for a “provisional waiver” to USCIS before being required to depart the US and make an application through a U.S. Consulate outside of the US.
How an Attorney Can Help You Obtain A Waiver
Meeting the “extreme hardship” standard is crucial to a successful I-601A provisional waiver. The level of hardship that must be shown is greater than the normal hardship a qualifying relative can be expected to experience if an immigrant applicant is deemed ineligible to immigrate. According to precedent immigration case law, relevant factors to be considered in determining "extreme hardship" include the following:
Presence of lawful permanent resident or U.S. citizen family ties to the U.S.;
Qualifying relative’s family ties outside the United States;
Conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries;
Financial impact of departure from the U.S.; and
Significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
What does it mean that the waiver is “provisional?”
Even if a waiver is granted, the approval is “provisional.” As a practical matter, this means that the government has reviewed the case and believes that the waiver should be granted, but there is no guarantee that a case will be successful if facts change or new information comes to light. For example, if an applicant had previous immigration violations or criminal history, the provisional waiver will be revoked. Again, speak with Attorney James A. Welcome who has over 15 years of experience in immigration law. If any new issues arise, and the applicant is still eligible for a waiver, he or she will be able to re-apply using the existing process, but will have to wait abroad for a decision on their case.
What else do I need to know about provisional waivers?
A provisional waiver is not a legal status, and even an approved waiver doesn't provide work authorization, a social security number or a driver’s license. Having a provisional waiver will not protect you from deportation or any other consequences of being in the country illegally.
If an application for a provisional waiver is denied, there is no appeal. If you have more or better evidence to prove your case, you can refile. Remember, not everyone can be sponsored or qualify for a waiver, and just as importantly, not everyone needs a waiver.
Do I need to work with an attorney?
The immigration process can take months, even years, and government filing fees and other expenses are significant—it’s best to know your options before investing time and money. Immigration attorney James A. Welcome will conduct a thorough legal consultation, look at all aspects of your immigration (or criminal) history, and seek to find the best solution for your family. If the I-601A provisional waiver is suitable to your case, he is extremely qualified to handle it and get the positive results he has obtained for various clients in the past.
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