Starting March 4, 2013, certain relatives of U.S. citizens who are in the country illegally will be able to complete part of the processing of their immigration cases without having to leave the country.

Under current immigration law, many immigrants who enter the country illegally or overstay their visas cannot apply for permanent resident status (a green card) by adjusting status in the United States; instead, they must go to a U.S. Embassy or Consulate abroad to complete processing of their application.  However, in many cases, leaving the U.S. after accruing “unlawful presence” can automatically trigger a three or ten-year ban from reentering the country, thereby potentially separating family members for up to ten years.  This penalty requires filing a separate waiver application, a process that is time consuming and often costly.  Before this new rule, immigrants could be stuck outside the U.S. for months or even years while waiting for a decision on their waiver application, usually with no other legal way to return to their families in the U.S.

The new rule will streamline the process because it will allow many immigrants to leave the U.S. knowing in advance that their waiver application has been “provisionally” approved.  They can then depart the U.S. and complete the processing of their immigration case in one step at the U.S. Embassy or Consulate (instead of two or three steps) and be back in the U.S. with their families as legal permanent residents in a matter of days instead of months or years.

Who can apply for the provisional waiver?

At this time, only immediate relatives (spouse, parents of children over 21, and unmarried children) of U.S. citizens are eligible to apply.  The applicant must be at least 17 years old, be physically present in the U.S. and must have an already approved immigrant petition (I-130).  If you have not filed the I-130 yet or if you are still waiting for a decision on a pending I-130, you cannot apply for the provisional waiver until such time as the I-130 is approved.  If you already have an interview scheduled at a U.S. consulate abroad, you may not apply for the provisional waiver.  In addition, the provisional waiver is only available if the sole issue holding up the case is unlawful presence.  Applicants with criminal convictions or other immigration violations may not use the provisional waiver procedure.  Individuals who are currently in immigration court or who have received an order of removal or voluntary departure may not apply until their case has been administratively closed.

What does “provisional” mean?

Even if the waiver is granted, the approval is “provisional.”  This means that the government has reviewed the case and believes that the waiver should be granted, but it can still be revoked if new information comes to light or if there is a change in the situation (for example, if an applicant is convicted of a crime).  If new issues come up and the applicant is still eligible to apply for the waiver, s/he may reapply but will have to wait abroad for a decision on their case.

What do I need to show to obtain the waiver?

To be successful, applicants must demonstrate that a denial of the waiver would cause extreme hardship to the U.S. citizen relative(s).  The effect on the immigrant doesn’t matter.  There is no regulatory definition of extreme hardship and it is based on a totality of the circumstances.  However, factors may include economic hardship, medical issues, emotional hardship due to family separation, country conditions abroad, disruption to education, and any other difficulty or harm faced by the U.S. citizen relative(s) if left behind in the U.S. and if forced to accompany the immigrant relative abroad to prevent separation.

Does a provisional waiver grant any legal status in the United States?

A provisional waiver does not grant any sort of legal status in the U.S.  Even if you obtain a provisional waiver, you are not authorized to work and you cannot apply for a social security number or a driver’s license.  In addition, being granted a provisional waiver does not protect you from deportation or any other consequences of being in the U.S. illegally.  If your application for a waiver is denied, you may reapply with additional evidence that you are eligible, but you will have to pay the filing fee of $585 again.

We expect additional guidance from the U.S. Citizenship and Immigration Services to be forthcoming.  In the meantime, Orner & O’Brien encourages individuals to contact a licensed and experienced immigration attorney to discuss eligibility for the provisional unlawful presence waiver.  Not everyone can be sponsored or qualify for a waiver, and not everyone needs a waiver.  For more information, please contact us at info@ornerobrien.com.