Provisional Waiver for Unlawful Presence
A provisional waiver allows certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) to obtain an unlawful presence waivers before they leave the United States. The provisional waiver process allows individuals, who entered the U.S without inspection or who overstayed their visa, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.
The new process shortens the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States. The approval of provisional waiver means that the U.S. Citizen’s family member will not be subject to the 3- and 10-years bans, due to their unlawful presence in the U.S, that are faced by undocumented or “overstay” immigrants who depart the U.S.
To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:
- Be 17 years of age or older.
- Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available). An immediate relative is an individual who is the spouse, child (unmarried and under 21), or parent of a U.S. citizen.
- Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
- Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee (IV Fee).
- Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
- Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
- Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.
The most complex part of the provisional waiver process is establishing the “extreme hardship” requirement. Extreme hardship is a nebulous term which has never been defined by immigration laws. Consequently, an immigration judge has greater discretion to approve or deny provisional waiver applications than they do with other U.S. immigration benefits.
Generally, the immigration courts consider extreme hardship to be hardship on the U.S. citizen relative that goes above and beyond what would normally be expected upon the removal of a close family member. “Normal hardship” is generally viewed as economic disadvantage, inability to maintain one’s present standard of living, separation from family members, or cultural readjustment. These “normal hardships” alone won’t generally constitute “extreme hardship.”
New York Provisional Waiver Lawyers
At the Law Firm of Damian Vargas, we have successfully helped our clients obtain provisional waiver and eventually their permanent residence. We work closely with our clients and their family to evaluate the family and identify potential hardships. Not everyone will be able to meet the “extreme hardship” requirement and we competently and honestly evaluate every case in order to avoid unnecessary expenses. Contact us for a consultation.