Filing the Provisional Waiver for Unlawful Presence in the US

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Under current US law, some immediate relatives of US citizens (spouses, parents, children under 21) are not eligible to adjust their status to permanent residence in the US and must travel to their home country in order to process their visas. Anyone who has been in the US in “unlawful presence” for more than 180 days will be barred from returning to the US for a specific period of time upon departure from the US. While there has always been a waiver available based on extreme hardship to a US citizen or permanent resident spouse or parent, until 2013, this waiver had to be applied for outside the US. This resulted in lengthy separation of families, often for several years, creating emotional and financial hardship for families. The impact on family immigration cases has been significant.

However, in 2013, a new provisional waiver program took effect. This allows immediate relatives of United States citizens to apply for the waiver while still in the US and, if it is approved, their visa issuance will take weeks instead of years, assuming there are no additional problems that surface at the consular interview. At this point, relatives of green card holders are not eligible for the provisional waiver and must still apply for the waiver at their home consulate.

In order for a provisional waiver to be granted, the applicant must show that their qualifying relative will suffer extreme hardship if the applicant is not allowed to return to the US. Most generally, immigration is looking for an affidavit from the potential immigrant outlining with specificity the hardship their relative will suffer. In addition, other supporting documentation should be attached, including such things as medical reports, medication lists, psychologist reports, bills, and financial information. Family photos should also be submitted as well as school records for any children involved. While hardship to the children cannot be considered, the US citizen parent is most definitely impacted by the suffering of their children and that aspect can be considered.

Information regarding social, educational and health conditions in the home country should also be submitted. This can be information regarding economic conditions inside the home country, as well as health conditions in that country, availability of medical care, employment prospects and educational opportunities.

It is important to seek competent legal advice in order to file the waiver. Encounters with immigration at a border crossing, past immigration history and criminal issues, gang affiliations including drunken driving convictions, can complicate the waiver application and even result in a denial.

In short, this provisional waiver provides at least some relief from the ravages of a broken immigration system by reducing the length of time some families are separated and providing additional assurance that a relative who leaves the US will, in fact, return in a reasonable amount of time. Family immigration and family reunification should be a priority of our immigration system. This waiver is a step in the right direction.