The provisional waiver program was implemented on March 3, 2013. Also known as a "stateside" waiver, or an I-601A waiver, this new program offers an exciting opportunity for immigrant families. The provisional waiver program allows spouses of U.S. citizens to apply for their green cards, or lawful permanent residency, without having to leave the United States, and being separated from their families, for long periods of time. It also allows parents of adult U.S. citizens the same opportunity, although the situation for parents, as opposed to husbands and wives, of U.S. citizens, may be a bit different.
The provisional waiver program applies to people who entered the United States without inspection. This means that, if someone came to the U.S. without papers, and without being inspected and admitted by an immigration official, then he or she "entered without inspection." People who fall into this category generally remain in the U.S. for more than 6 months. When someone enters without inspection, and stays for more than 6 months (after his or her 18th birthday), that parson accrues a 3 year unlawful presence bar of inadmissibility. When someone stays for more than a year (after his or her 18th birthday), that person accrues a 10 year unlawful presence bar of inadmissibility.
Most often, a person who entered without inspection when he or she is very young. Later in life, that person falls in love and marries a U.S. citizen. Although the person who entered without inspection can now apply for a green card through his or her spouse, the law requires the person to go back to his or her home country for an appointment with the U.S. consulate. This procedure is called consular processing.
But there's more. Because the person has accrued unlawful presence in the U.S., he or she is now subject to the 3 or 10 year bar of inadmissibility. Such people are not allowed to reenter the United States for 3 or 10 years without an unlawful presence waiver. To qualify for an unlawful presence waiver, an applicant must demonstrate that, without being able to return to the U.S., the applicant's U.S. citizen spouse, or U.S. citizen parent, would suffer "extreme hardship."
In the past, it would take up to a year for a green card applicant in this situation to remain outside of the country. Why? Because the U.S. consulates would schedule one interview for the green card, and then would schedule a second interview--up to a year later--to decide whether the unlawful presence waiver should be granted. The old system was very difficult, since it required applicants to be separated from their families for up to a year, and they still would not know the result of their waiver application until the final interview.
Under the new system, the unlawful presence waiver may be filed, and will be "provisionally" approved or denied, before the applicant ever leaves the United States. Assuming the provisional waiver is approved, the applicant can expect to be out of the country for no more than approximately one week before returning to the United States as a lawful permanent resident, with his or her green card. There is always the possibility, of course, that the U.S. consulate can reverse the provisional approval of the waiver, but unless the applicant provided false information on the waiver application, or violated the law in some other way between the time the application was submitted, and the time of the consular interview, it is unlikely that there will be problems at the final interview.
Nevertheless, the process of applying for a provisional waiver is complicated. Without a proper understanding of all of the factors that can affect eligibility, it is risky to apply. Nobody should attempt to do so without first consulting with a qualified immigration lawyer. Moreover, there is much, much more to this process than simply filling out the forms. A proper waiver application must be supplemented by the proper information, documentation, and legal arguments to satisfy the difficult "extreme hardship" standard.
At Green | Evans-Schroeder, we know how long you have been waiting for this kind of extraordinary opportunity. Our immigration attorneys understand how important it is for you to get your green card as soon as possible. We also know how critical it is for you to avoid spending time away from your family, and we do everything possible to maximize our clients' chances of a smooth and successful application process.