Provisional Waivers

Provisional Waivers

In January 2013, USCIS announced a new process of applying for “provisional waivers” 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 provision 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. For more information on adjustment of status and whether you or a loved one may be eligible to apply for this benefit, please look for the page discussing this benefit.

Here is the problem. 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 (“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 Consular Office (“USCON”) 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 (most commonly crewman (C/D) nonimmigrant visas).

The solution that has been in place for the past 15 years is that the applicant will be required to return to the USCON 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 which will become effective on March 4, 2013 and which will permit eligible applicants to submit a request for a “provisional waiver” to USCIS BEFORE being required to depart the US an make an application through a USCON outside of the US. This is welcome relief, but the process is new and will take some time to implement.

Under the pre March 4, 2013 rules, the applicant must first file obtain approval of an immigrant visa, have the approved visa sent to the USCON abroad, apply for an immigrant visa and have the application denied before a request for a “waiver” can be filed. Under the new system, the waiver application can be approved in the US on a provisional basis before the applicant departs to complete processing at the USCON. Under the old system families could be separated for expended periods of time waiting for an answer on the waiver application. Under the new system, this period of separation should be significantly reduced because the answer on the provision waiver will come before the applicant has to leave the US to complete processing through the USCON.

Keep in mind that the waiver that is issued in the US is “provisional,” meaning that it is not “guaranteed.” We expect this to mean that the overwhelming majority of provisional waivers will ultimately lead to immigrant visas being issued when the applicant returns to the USCON to compete processing. However if some information becomes known to the US government between the approval of the provisional waiver and the application for an immigrant visa through the USCON, the provisional waiver could be withdrawn or denied. Likewise, if the applicant engages in some conduct between receipt of the approval of the provisional waiver and the application for an immigrant visa through the USCON, this could also be a reason why an immigrant visa may be denied.

This new processing is only available to immediate relatives and this new procedure will only involve the processing of “waivers” to cure grounds of inadmissibility relating to “unlawful presence” and violations of the Act pertaining to being deported from the US. If other “waivers” are required (i.e. medical grounds, criminal grounds, etc.), the new process will not be available for these cases. And always keep in mind that this procedure is new to all of us and we will learn how the changes will be implemented as the process begins in March 2013.

Be careful when considering any application for an immigration benefit that will require the applicant to travel outside the US after being physically present in the US after violating US immigration laws. Frequent violations of the immigration laws can result in permanent ineligibility to obtain admission to the US and these permanent bars can be triggered by departing the US. Sometimes, the best advice is not to take advantage of benefits for which an applicant may appear eligible. Always obtain the advice of a trained and experience immigration lawyer. Know what to expect BEFORE departing the US because once one has left the US, returning may literally be impossible under current law.

If you or a loved one believe that you may be eligible to seek a provisional waiver under the new policy discussed in this article please give us a call for an initial consultation.