Out of status and need provisional waiver. My daughter naturalized, and my husband will be petitioned next. Problems for me?

Asked 9 months ago - Orlando, FL

I worked on a cruise ship for 6 years. Then after my last assignment in Miami in 2002, I didn't re-board the ship & decided to stay in the U.S. I was never petitioned before, so I was told I don't have 245i to get the green card. My 27 year old daughter married a citizen 4 years ago & recently naturalized. She wants to petition for me, but was told I would have to apply for a provisional waiver & go back home first if approved. My husband was a tourist who overstayed. He will be able to get his green card here in America. But can I use him for my provisional waiver once he gets his green card? Or do I really have to wait until he becomes a citizen too?

Attorney answers (10)

  1. Stephen D. Berman

    Contributor Level 20

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    Answered . Your biggest problem may be that you need a USC/LPR spouse or parent, in order to qualify for the waiver. If you do not have one, you cannot get the waiver.

    The above is intended only as general information, and does not constitute legal advice. You must speak with an... more
  2. Aneliya M. Angelova

    Pro

    Contributor Level 18

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    Answered . Your case is complex and needs to be evaluated thoroughly by an immigration lawyer. Schedule a consultation and provide all relevant facts and circumstances, so the lawyer cane properly evaluate and advise you. Good luck!

    This answer is for informational purposes only and should not be construed as legal advice.
  3. Jeffrey Adam Devore

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    Contributor Level 20

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    Answered . To qualify under the provisional waiver program he qualifying waiver must be U.S. citizen spouse. Parents and children do not qualify, nor do LPR spouse's.

    I would be interested in the details of how you entered the United States. While it would appear that you are a crewman who is ineligible for adjustment of status, sometimes it is possible to re-classify you as a non-crewman thereby making you eligible for adjustment by virtue of your daughter. All is not how it often seems when it comes to crewman issues.

    Consult with an immigration attorney experienced in crewman issues who can review your case in detail, advise you as to the options available, and how best to proceed.

    While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for... more
  4. F. J. Capriotti III

    Contributor Level 20

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    Answered . If you jumped ship on a C/D visa ... you have GIGANTIC problems.

    Talk to an attorney.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It... more
  5. Christian K. Lassen II

    Pro

    Contributor Level 20

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    Answered . Too complex for this forum, so call an immigration lawyer to discuss

  6. Shahzad Ahmed

    Contributor Level 14

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    Answered . Hello. Since you worked on the cruiseship it does appear that you are barred from adjusting status in the U.S. as a crewman. However, I would have this evaluated by an experienced immigration attorney. And you are correct, if a provisional waiver is needed and your husband becomes a lawful permanent resident, then he would become your qualifying relative necessary for the provisional waiver. However, please note that the standard for this waiver is "extreme" hardship; a very high standard. Please have an immigration expert evaluate your case. Best of luck to you.

  7. Kristin D Figueroa-Contreras

    Contributor Level 13

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    Answered . Greetings. The provisional unlawful presence (¨stateside¨) waiver is only available for spouses of US Citizens, not LPRs. Your case is further complicated by the fact that you appear to have remained after entering (or ¨jumping ship¨) on a C1/D crewman visa. Unless you also had a dual B1/B2 visa or other limited exceptions apply, you would be barred from adjusting status. I strongly suggest that you consult with an immigration attorney in person. Best of luck!

    Please note, the above answer is for general informational purposes only. We are a full-service immigration... more
  8. Lynne Rogers Feldman

    Contributor Level 18

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    Answered . This may be doable. Were you here on a D-1 as there are special rules for this classification?

  9. Ksenia Alexandrovna Maiorova

    Contributor Level 16

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    Answered . This is a very complex matter, in part because you may have entered as a crew member, and in part because you do not currently have a qualifying relative. Your best bet at this point would be to discuss the individual details of your case with an experienced immigration attorney. Best of luck!

    Answers provided by Ksenia Maiorova, Esq. on Avvo.com are of a general nature and do not constitute legal advice.
  10. Robert Louis Brown

    Pro

    Contributor Level 19

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    Lawyer agrees

    Answered . Once you husband is a permanent resident he may be a qualifying relative for the waiver. The waiver process is difficult and you should seek legal assistance at this time to begin preparing for the eventual waiver.

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