The Provisional Waiver Program

February 18, 2014: Are you married, or engaged, to a US citizen? If so you may be able to apply for a green card. If you entered the US without documents, or you have overstayed the admission period on your I-94 Card, or you have violated the terms of your immigration status, you may be in a period of unlawful status. You may also need a waiver of unlawful presence in order to apply for a green card. USCIS began a new program last year that allows undocumented immigrants to file an application for a provisional waiver of unlawful presence while they are in the US.

For example, if you entered the US on a student visa (F-1 or J-1), and are no longer enrolled in school full-time, you may be out of status. If you are eligible to apply for this kind of waiver, and you are eligible to apply for a green card. this program would help you more quickly become a permanent resident (a green card holder). For more information on the provisional waiver, or to schedule a consultation, contact us.

Violating US immigration laws can have harsh consequences for foreign nationals. One example is the three and ten year reentry bar.Under this law, any foreign national who is in the US, without authorization for more than six months can be barred from reentering the US for three years; if the foreign national instead stays in the US for more than a year, his reentry bar increases to ten years.

For an example from our own community, you can read about the experience of Nicole Salgado and her husband, Margo Resendiz here. Nicole and Margo decided that he should take the steps to regularize his immigration status, so they moved to Mexico in 2006 to wait out his reentry bar. They both left behind their jobs, families, and their lives in the US to make the move. (See Marnie Eisenstadt, Syracuse woman talks about her life married to an undocumented immigrant,

Until 2013, a foreign national could only overcome the reentry bar by leaving the US, becoming subject to the reentry bar, and then applying for an I-601 waiver at a US Consulate outside the US. If the waiver application was denied, the foreign national likely would not be able to reenter the US for the duration of his reentry bar. (For more information on the I-601 waiver, see the application instructions for the I-601 waiver here.) Because of this, many foreign nationals have chosen to stay in the US and live in the shadows rather than apply for a green card.

In March 2013, the US Citizenship and Immigration Services (USCIS) launched the I-601A Provisional Waiver program to address this situation. This program allows eligible foreign nationals to apply for a reentry bar waiver within the US, and stay in the US while their applications are being processed. Once the waiver application is approved, the applicant can then apply for an immigrant visa at a US Consulate through the normal channels. (By way of comparison, the standard waiver process requires a foreign national to request a waiver outside the US, after he has applied for an immigrant visa and been denied. Even if the waiver application is approved, the foreign national may still need to wait 1-2 years outside the US while the application is being processed.) The eligibility criteria for the Provisional Waiver program is very specific. To be eligible for the program, an applicant must:

  1. Be 17 years old or older.
  2. Be physically present in the US to file the provisional waiver application and provide biometrics (i.e. fingerprints).
  3. Be the beneficiary of an approved relative petition (Form I-130 or I-360).
  4. Have a pending immigrant visa case, based on the approved relative petition, and have paid all applicable visa processing fees.
  5. Demonstrate that refusing admission to the applicant would cause “extreme hardship” to the applicant’s US Citizen parent or US Citizen spouse.
  6. The foreign national may not be subject to any ground of inadmissibility, other than the reentry bar for unlawful presence.

The following criteria may make a foreign national ineligible for the Provisional Waiver:

  1. The foreign national’s immigrant visa interview was scheduled before January 3, 2013.
  2. The foreign national is in removal proceedings. (Exceptions: (1) the foreign national’s removal proceedings have been administratively closed; (2) the foreign national is a DACA grantee and shows that any immigration court proceedings against him have been terminated or dismissed.)
  3. The foreign national reentered the US without authorization from the immigration service, after being deported.

While there were initially technical and legal issues in the program, we have been encouraged to see that the immigration service has been resolving these issues in response to feedback from immigration stakeholders. (See Alan Lee, I-601A Filers with Approved Immigrant Visas Facing $165 Glitch, However, we also believe that the ongoing evolution of the Provisional Waiver program highlights the need for legal representation in these cases. An experienced attorney can work with a foreign national to assess whether he is eligible for the provisional waiver, anticipate any ongoing procedural and technical issues, and identify any legal issues that might affect the case.

Our office has represented hundreds of applicants, seeking a variety of immigration benefits, including family and employment visas, green cards, naturalization, and proof of US citizenship. We can work with you to determine whether the provisional waiver is the right choice for you and your family, and we can also work with you to assemble a strong waiver application. If you are interested in learning more about the provisional waiver process, please contact us.