A provisional waiver from USCIS removes a specific ground of inadmissibility from an application for permanent residence. This waiver applies to an alien who has been found to have been in the country unlawfully. USCIS enacted the provisional waiver to speed up the wait and reduce the risk for those who want to apply for permanent resident status but are subject to the bar for unlawful presence. The new standards were adopted in March of 2013. The waiver applies to immediate relatives of citizens who live in the United States.
Prior to this new program, people who requested a waiver would have several months in their home country before getting approved or denied. This could place substantial hardship on both those applying and the loved ones who were already in the U.S., especially if the waiver was ultimately denied.Under the new rules, the alien is able to wait in the United States while the waiver application is pending. For instance, let's say someone had unlawfully stayed in the U.S. for six months. After this, they applied for permanent residence and returned to his or her home country. If this happened, they would have to wait several months or more before coming back to the U.S.
With the new rules, the application for a waiver if fully adjudicated while the immigrant remains in the United States, thereby greatly reducing the amount of time he or she must spend in the home country. Those who apply for permanent residence can return to the country within a few weeks, as soon as the consular interview is completed.Before the new provisional waiver, those who wanted to apply would have to go back to their home country regardless of circumstance. Now, those who are unlawfully in the country can stay during the provisional waiver application process. Once they get approved, they still must go back to their home country, but can return to the U.S. after just a few weeks. This was not possible to achieve so quickly prior to the provisional waiver program.
How to Qualify
Only certain aliens are eligible for the provisional waiver. You will need to answer,"Yes," to these questions before you apply.
- Are you at least 17 years old?
- Are you located in the United States at the time of application?
- Are you an immediate relative (parent, spouse, child under the age of 21) of a citizen of the U.S.?
- Have you gotten an I-130 petition filed and approved by your relative?
- Do you have an immigrant visa case with the Department of State?
- Can you show that the U.S. citizen you are related to will be put under extreme hardship if you do not have a waiver?
- Are you free of any other reasons to not be admitted to the United States?
If you meet the above criteria, the person applying will need to file the I-601A form. Please note that all details on this waiver will not be shared with law enforcement agencies or with ICE to initiate removal proceedings. The only conditions where this might not be the case is if someone has a criminal violation that poses a threat to national or public security.
While the new rules for provisional waivers have improved the lives of applicants, there are still certain conditions attached. You should know that USCIS still enforces these conditions and will expect them of you once you have received your provisional waiver.
Your immigrant visa interview is still in your home country.
While waiting for your provisional waiver in the U.S. is fine, your interview for permanent residence must happen in your home country. Also, if you already have an interview for your immigrant visa in your home country, you cannot apply for a provisional waiver. If you are in the country unlawfully and want to be a permanent resident, apply for the provisional waiver first. This will make things easier for you and your family.
The provisional waiver does not waive other grounds of inadmissibility.
The provisional waiver only covers the bar for unlawful presence, often call the 3/10 bar, because an alien is inadmissible for 3 years if he or she accrued 6 months of unlawful presence, and is inadmissible for 10 years if he or she accrued 1 year or more of unlawful presence. It does not waiver other grounds of inadmissibility, such as other immigration violations, criminal convictions, or health or economic grounds. It also does not waive the “permanent bar”, which applies to an unlawful re-entry after a prior deportation or a prior period of unlawful presence. It is very important you make sure that these other bars do not apply to you before leaving the country, even if you have a provisional waiver.
If you cannot prove your denial would cause "extreme hardship," do not apply.
With the amount of time and resources you would need to invest, you must be confident that your absence from your relative/significant other would cause them hardship. The more evidence provided that it will create hardship, the better your case will be. If you are ready to get a provisional waiver, don't wait. Salmon-Haas can help work towards getting you the waiver you need. They will also work with you to find the best course of action for your application for permanent residence. Their services as immigration attorneys can help you work towards the life you want.