What is Provisional Waiver?The provisional waiver is a new program where USCIS will adjudicate extreme hardship waiver cases for persons in the U.S. who are neither eligible to change status or adjust status to permanent residence. In the past, applicants for extreme hardship waiver cases needed to leave the U.S. to file the case and if the case was denied, they were separated from their family indefinitely or at least 3 to 10 years. Now, the provisional waiver program allows eligible parties to file from the United States, receive a decision without leaving the U.S. and upon approval, exit the U.S. to attend an interview at an overseas U.S. Consulate. Provided that the Consulate agrees with USCIS approval, the Applicant will likely be granted permanent residence upon entry into the U.S. on an Immigrant Visa (green card). In the event USCIS denies the provisional waiver case USCIS does not envision initiating removal proceedings or referring provisional unlawful presence waiver applicants to ICE. However, in limited instances USCIS reserves the right to issue a Notice to Appear for Removal Proceedings, but from the sounds of it is unlikely.
Who is eligible for Provisional Waiver?
- Alien who is inadmissible based on having accrued a certain period of unlawful presence in the United States. Generally this arises when the Alien entered into the U.S. without inspection or “papers”. If the Alien entered with proper inspection but overstayed a visa and does have an immediate relative relationship with a U.S. citizen i.e. a U.S. citizen husband/wife or parents, this process is likely not applicable and the Alien and U.S. Citizen may need to file a different type of case such as a marriage based adjustment of status case.
- Such Alien must have be an Immediate Relative of an U.S. Citizen. The immigration law describes an Immediate Relative as someone who is in a relationship with an U.S. Citizen as the following persons: – Spouse, or – Unmarried child under the age of 21, or – Parent (if the U.S. citizen is over the age of 21).
- There must be a showing of Extreme Hardship to the U.S. Citizen – there are a variety of ways to prove extreme hardship to the U.S. Citizen. However, the degree of hardship must be substantially more than just the emotional hardship of missing the alien. Some of the factors are: (i) a showing of financial impact due to the loss of the Alien in the US; (ii) Health and Medical issues; (iii) inability to engage in profession; (iv) language barrier; (v) dangerous country conditions and many other reasons.