The Provisional Waiver program as of August 29, 2016
The provisional waiver program has expanded so that more family members and types of petitions can qualify.
What is a waiver?A waiver is a pardon for a ground of inadmissibility. Before an applicant for a visa can be admitted for any visa type, the applicant must establish that they are admissible or that they have received a waiver for the ground of inadmissibility that applies to them. There are several different kinds of waivers. For example, there are waivers for misrepresentation or fraud, waivers for certain crimes, and waivers for unlawful presence.
What is a provisional waiver?The provisional waiver only applies to individuals seeking a waiver for unlawful presence who have a visa available and a qualifying relative to whom extreme hardship may be demonstrated. It is applied for and adjudicated before the visa appointment at the US consulate abroad.
Who are the qualifying relatives who have to suffer extreme hardship?A US citizen (USC) or lawful permanent resident (LPR) spouse or parent is a qualifying relative for this type of waiver. You only need one qualifying relative, but you can use more than one qualifying relative to show hardship if you have more than one.
What is the advantage of the provisional waiver?The advantage of the provisional waiver is knowing your waiver is approved before you depart the United States.
Why is it "Provisional"?It is called a provisional waiver because it is not the final determination. If the US consular officer determines that you have some additional ground of inadmissibility (other than unlawful presence), you would not get your visa until another regularly filed waiver is approved that covers that additional ground of inadmissibility.
What is unlawful presence?Unlawful presence is the time you accrue after your I-94 card expires or in the case of those who enter without inspection or "ewi" for the entire time you are in the US. If you were admitted as a student or exchange visitor (F-1 or J-1) and your I-94 card indicates D/S (short for duration of status) you may not accrue unlawful presence even though you may be out of status.
What does the expansion of the provisional waiver do?The expansion of the provisional waiver program did a few things:
1) It expanded qualifying relatives to include permanent resident (LPR) spouses and parents (not just USC spouses and parents);
2) It allows any number of immigrant petitions to form the basis of the visa availability, such as an I-140 employer petition.
3) It allows certain individuals with final orders of removal to apply only after approval of an I-212 permission to re-apply for admission after deportation. In the author's opinion, this would not include individuals with in absentia orders of removal;
4) It did away with a reason to believe standard for denial. Previously provisional waivers were being denied if the adjudicator believed that the applicant had another ground of inadmissibility which disqualified the applicant from the provisional waiver. The "reason to believe" standard was problematic because some determinations were overly broad and the applicant should not have been disqualified. Now the applicant must really be certain there is no additional ground of inadmissibility because the immigration adjudicator will not be looking for it. This is a major CAVEAT! You should contact us to make sure you qualify before you apply.