Provisional Waiver of Unlawful Presence Process = Lower Risk?

Provisional Waivers of Unlawful Presence

USCIS recently announced a new Provisional Waiver program for persons having accrued unlawful presence in the US.  The new rule will go into effect March 4, 2013.  The provisional waiver program is certainly not comprehensive immigration reform and its not even a change in the law.  But for those eligible it is a positive change.  Let’s start out by describing in laymen’s terms what the provisional waiver is.

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?

  1. 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.
  2. 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).
  3. 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.

What is new under this Provisional Waiver of unlawful presence?

In the past, filing an extreme hardship waiver was risky due to the requirement that the Alien leave the U.S.  However, under the new rules of the Provisional Waiver for unlawful presence, as long as the Alien does not have a criminal or fraudulent record and is not a national security risk, the new provisional waiver program substantially reduces the risk as USCIS has suggested that its policy is to not refer denied cases to ICE.  A risk not discussed is what if Comprehensive Immigration Reform is announced.  Perhaps there will be an easier way if reform is passed.  It likely should not be the determining factor in whether to apply for the extreme hardship waiver case, but it should be factored into the decision.

There are several other eligibility requirements, but the above requirements are the main issues.  For an evaluation in whether an Extreme Hardship Waiver through the new Provisional Waiver process is right for you, feel free to contact Cipolla Law Group.

*We have over 25 years of combined experience and EXCELLENT PROVEN RESULTS  in helping foreign nationals to achieve their immigration goals.