On March 4, 2013 certain spouses of U.S. citizens became eligible to file for a provisional waiver of the unlawful presence ground of inadmissibility. Since the introduction of the provisional waiver, many of Kevin’s clients have received their residence after brief departures of less than two weeks. None of Kevin’s clients have been denied their visa by the consulate or been unable to return. This is an exciting opportunity for spouses of U.S. citizens to receive lawful permanent resident status without facing an uncertain and lengthy separation from their families outside of the United States. It is also a new process and there is a lot of confusion about who is eligible and what risks an applicant faces.

Why do I need an unlawful presence waiver?

If a spouse of a U.S. citizen entered the United States unlawfully and is not eligible to adjust status under INA §245(i), they are required to leave the United States in order to apply for their visa at a United States consulate abroad. However, if they have been in the U.S. for more than a 180 days without authorization, they have accrued unlawful presence and will trigger a three or ten year bar (or punishment) under INA § 212(a)(9)(A)(i). Their visa will be denied at the consulate.  Fortunately, there is a waiver available if the applicant can prove that their U.S. citizen or permanent resident spouse or parents would face extreme hardship if a visa is not granted. In the past, even if the applicant knew they would need a waiver they would have to attend the interview at the consulate and follow the consulate’s rules about how to file a waiver. The process was complicated and lengthy. This led many spouses of U.S. citizens to stay in the U.S. without documents rather than facing an uncertain and risky separation from their families. The provisional waiver changes this by giving spouses of U.S. citizens the opportunity to file their waiver and wait for a decision in the United States with their family.

Can the provisional waiver also waive other grounds of inadmissibility?

No. The provisional is available ONLY to spouses of U.S. citizens who ONLY need a waiver due to their unlawful presence in the United States. You are not eligible if you are inadmissible under any other grounds of inadmissibility. These can include certain criminal convictions or immigration violations such as fraud or a prior deportation. USCIS has stated that they will deny applications if they have a reason to believe you might be inadmissible for any other grounds. It is important to meet with an attorney to evaluate your case and determine if there is a chance you might be inadmissible under any other grounds and might not be eligible for the provisional waiver.

What happens if my application is approved? Do I still have to leave?

If your application is approved, you are still required to leave the U.S. to get your visa at a U.S. consulate abroad. Fortunately, the process will be much quicker as you will already have the approved provisional waiver. A good estimate is that it will take a week or two to get your visa abroad. Be aware that the consulate will also review your case and determine that you do not need a waiver for any other reasons than your unlawful presence in the United States. Even if you have an approved provisional waiver, the consulate can deny your case and require a new waiver if one is available.

What happens if my application is denied?

As the process is new, there is very little information about what will happen when a provisional waiver is denied. USCIS has stated that they do not intend to refer applicants with denied provisional waivers to removal proceedings, but there is nothing that prevents them from doing so. USCIS will follow their own guidance, available here, when deciding whether to refer a denied case to immigration court. With that said, applicants who are on the list of enforcement priorities are most likely not eligible for a provisional waiver in the first place.

As the provisional waiver is new and surrounded by confusion, it is advisable to speak with an attorney to confirm your eligibility and explain the process and risks to you.