Written by attorney Laura Justine Jacobson

New Provisional Waiver Rule from USCIS: What Is It and Who Can Get It?

On March 4, 2013, USCIS began its new provisional waiver program, an effort to limit the amount of time a family must be separated while their immigrant visa application is processing. Under the immigration laws, many family members of U.S. citizens and lawful permanent residents (LPRs) must finish their application process by attending an interview at the U.S. consulate in their country of origin, a system known as consular processing. If the applicant has been living in the United States without legal status, he or she must then ask for a waiver in order to come back from this interview. This new rule is designed to limit the amount of time an applicant is outside of the U.S. waiting for a decision on the waiver.

What is a waiver and who needs it?

In order to qualify for an immigrant visa, an applicant must not be inadmissible. Several inadmissibility grounds exist under current immigration law – some make an immigrant inadmissible forever, and some punish an immigrant with a certain number of years he or she must spend outside the United States. For some inadmissibility grounds, an applicant may ask for a waiver to “forgive" whatever it is that makes the person inadmissible.

Many intending immigrants face the inadmissibility ground of unlawful presence, which comes with a bar of a certain number of years they must stay out of the country before coming back lawfully. When a person has been in the United States without legal status for more than 180 days, the bar is three years; when they’ve been unlawfully present more than a year, the punishment is ten years.

The waiver exists as a way to avoid this punishment. In a waiver application, the applicant must show that his or her U.S. citizen or LPR spouse or parents would suffer extreme hardship if the applicant was not allowed to return to the United States. The suffering can be physical, emotional, financial, and otherwise, but it must be extreme. Additionally, an applicant must show the suffering would be to a U.S. citizen or LPR spouse or parent. If the applicant doesn’t have one of these relatives – for example, if the only relatives are U.S. citizen children – then the applicant won’t qualify for a waiver.

Note that, in general, only applicants who entered without inspection will need to apply for a waiver. If an applicant is an immediate relative of a U.S. citizen and came to the United States on a visitor visa, for example, they may be able to adjust status here without having to leave the country. Under that process, a waiver for unlawful presence is not needed. This option is not available to family members of LPRs.

How is the new provisional waiver different than the old process?

In the past, an applicant was not able to apply for a waiver until after he or she had already left the country. The process would begin by the applicant’s U.S. citizen or LPR relative filing a family petition for the applicant. Once the family petition was approved, the applicant would receive instructions for submitting his or her documents to the National Visa Center, and then ultimately be scheduled an interview with the U.S. consulate in his or her home country. When the applicant left the United States to attend this interview, the 3- or 10-year bar would kick in. At the interview, the applicant would be informed of the need for a waiver. Only then could the waiver application be submitted, and the applicant would have to wait in the home country several months or more than a year waiting for a decision on the waiver. All this time, the applicant would be separated from his or her family in the United States.

The new provisional waiver rule does not change the normal process for getting an immigrant visa. An applicant for a family petition who entered the U.S. unlawfully will still need to return to his or her home country for an interview with the U.S. consulate to complete the process.

The benefit of the provisional waiver is that the applicant will be allowed to apply for the waiver here in the United States and receive a provisional decision on the waiver before leaving the country. The decision is only provisional, which means that the officer in the consulate still has the last say and can choose to deny. However, the idea is that the new provisional waiver will give USCIS an opportunity to review an applicant’s waiver application ahead of time. If the waiver is approved provisionally and again at the consulate interview, an applicant should be able to return to the United States much more quickly, without the delay caused by processing the waiver application. This is good news for many families who have put off applying for years, in fear of being separated for such a long time.

Who qualifies for the new provisional waiver?

Not everyone who qualifies for a waiver will be able to use the new provisional waiver rule. The provisional waiver is only for applicants whose only inadmissibility ground is unlawful presence. If an applicant is inadmissible for unlawful presence and for visa fraud, for example, he or she will not be able to file a provisional waiver and will have to use the normal process instead. The provisional waiver is also only available for immediate relatives – spouse, children, or parents – of a U.S. citizen. Though a spouse or child of an LPR may qualify for a waiver, they have to apply through the normal process as well. Also, a person cannot apply for the provisional waiver if his or her consulate interview was scheduled before January 3, 2013. An applicant also does not qualify if he or she has a pending I-485 adjustment of status application, as the waiver is only for those who must consular process.

Will I still have to leave the United States to get my visa?

Yes. The new provisional waiver rule does not change the standard process for obtaining an immigrant visa. If an applicant does not qualify for adjustment of status (explained briefly here), then he or she will still have to go through consular processing, attending an interview at the U.S. consulate in his or her home country, in order to get their immigrant visa.

How do Iapply?

To apply for the provisional waiver, an applicant must already have an approved I-130 family petition and a case pending with the Department of State. At that point, an applicant can submit an I-601A provisional waiver application, with the filing fee, to the appropriate Lockbox.

Waivers are complicated and difficult applications. An applicant must show not only that his or her family members would suffer, but that they would suffer extremely. Significant proof must be included to back up this argument. It is highly recommended that an applicant consult with an immigration attorney who can help prepare a complete, detailed, and organized waiver application.

Legal Disclaimer: The information offered is general in nature and not meant to be relied upon as legal advice. No client-attorney relationship is created through this information. Please consult an attorney prior to making legal decisions.

**Originally published at

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