Provisional waivers are for immigrants who are “inadmissible” to the United States. There are many reasons an individual can be inadmissible, but the most common reason is because they entered the United States once without lawful status and remained here unlawfully. Individuals may also be inadmissible because of his or her criminal history or because of other immigration violations. A provisional waiver, if approved, only forgives unlawful presence. If you have other violations, you should consult with an attorney to see if you are eligible for a provisional waiver.
What are the benefits of a provisional waiver?
Before the provisional waiver was created in 2013, immigrants had to leave the United States and then apply for a waiver. While they waited for a decision, they had to remain outside of the United States, away from their family. A provisional waiver allows the applicant to apply while still in the United States. This means if the waiver is approved, the applicant only has to leave the United States for his or her consular interview abroad. Typically, the applicant does not need to remain outside the United States for longer than a week or two.
Who does the expansion include?
Before the 2016 Provisional Unlawful Presence Waiver Rule, only individuals who had a U.S. citizen spouse or parent could apply for the waiver. Under the 2016 Rule, individuals who have a U.S. citizen or lawful permanent resident spouse or parent may be eligible for a provisional waiver. This is the Rule’s most significant change.
There are some other changes which affect a small number of people. If you were previously not eligible for a provisional waiver, you should consult with an attorney to see if you are eligible now.
Do I qualify for a provisional waiver?
To qualify, you must only be inadmissible to the United States because of your unlawful presence. You must be an adult living in the United States and have an approved immigrant petition, either through a family member or your employer. You must have a qualifying relative – a U.S. citizen or lawful permanent resident spouse or parent – who would suffer extreme hardship if you were not permitted to re-enter the United States after consular processing.