Six Things You Need to Know Before Filing Your Stateside Provisional Unlawful Presence Waivers
Author: Sean Lewis on 1/4/2013

Beginning on March 4, 2013, certain family members of U.S. Citizens who are in the United States illegally will be able to file their waivers of unlawful presence before applying for their green cards and leaving the U.S. for their consular interviews. This new process will enable people to know in advance whether their immigration waiver is likely to be approved, rather than risk a denial and painful separation from family members while a decision is pending. Further, knowledge of whether a case is likely to be approved will certainly influence the decision of whether to proceed abroad for an interview in the first place.

1. What is a provisional waiver?

The U.S. Government recognizes that families experience long and painful separation due to processing delays while applying for waivers of inadmissibility at U.S. Consulates abroad. To keep families together, the new process, which begins on March 4, 2013, allows families to know in advance of departing the United States whether the waiver portion of an immigrant visa case will be approved. Thus, the waiver is called a “provisional” waiver because it may be filed stateside and will be adjudicated before the intending immigrant leaves the U.S. to attend the visa interview. The intention of the new procedure is to avoid unnessary family separations.

2. Who can apply for a stateside provisional waiver?

Only applicants who are certain immediate relatives of U.S. Citizens or legal permanent (spouses, parents) and who would suffer extreme hardships if the waiver were not granted (medical, economic, psychological, country conditions) will be allowed to apply for the provisional waiver. Further, the immigration petition must have been filed by a U.S. Citizen parent, spouse or child over age 21 to qualify.

The applicant may not apply if s/he seeks to waive inadmissibility other than a single unlawful entry, or unlawful presence over 180 days.

3. Who cannot apply for a provisional waiver?

An applicant who is not in the United States or who has had an immigrant visa interview scheduled at a consulate prior to March 4, 2013 may not apply for the provisional waiver. Applicants who have other grounds of inadmissibility, such as multiple illegal entries into the U.S. or who have committed certain crimes will not qualify.

4. Does a grant of the provisional waiver make me legal?

A provisional waiver does not grant any legal status or work authorization. The waiver is merely one step in the immigrant visa process.

5. Does a provisional waiver cancel my deportation or agreement to voluntarily depart the United States?

A provisional waiver does not cancel a prior order of removal or voluntary departure. To apply for the waiver, a respondent must first administratively close the removal proceedings (before the immigration judge) and later terminate the proceedings to be able to leave the United States to attend the visa interview. Failure to do so has dire consequences and effectively results in “self-deportation”.

6. Do I need to work with an immigration attorney?

The immigration process is extremely complex, expensive and can take years to complete. Never trust a notario, friend or pastor with your family’s future. Always work with an experienced immigration attorney before deciding to file a provisional waiver. A good attorney will also review to see if a better option is available.

Written by Sean Lewis, Immigration Attorney and Managing Member of the Law Offices of Sean Lewis, PLLC, Nashville, TN.