We have been receiving provisional waiver approvals lately in as little as two months.This is due in large part to the efforts of our clients to gather all of the evidence needed to show their eligibility for the provisional waiver.
What is a Provisional Waiver?
Since March 4, 2013, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. Foreign nationals who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued over 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under section 212(a)(9)(B) of the Immigration and Nationality Act before they can return. Typically, these foreign nationals cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad, and a Department of State (DOS) consular officer has determined that they are inadmissible to the United States.
The provisional unlawful presence waiver process allows immediate relatives who only need a waiver of inadmissibility for unlawful presence to apply for that waiver in the United States before they depart for their immigrant visa interview. To be able to obtain a waiver the applicant must show a hardship upon their immediate relative; if the applicant returns to their home country and the immediate relative remains in the United States; and if the immediate relative joins the applicant in the applicant’s home country.
What are the elements of hardship for the Provisional Waiver?
The elements of hardship are defined as:
- Health – For example: Ongoing or specialized treatment required for a physical or mental condition; availability and quality of such treatment in the foreign country; anticipated duration of the treatment; chronic vs. acute or long- vs. short-term.
- Financial Considerations – For example: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children with special needs; cost of care for family members (elderly and sick parents).
- Education – For example: Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time or grade; availability of special requirements, such as training programs or internships in specific fields.
- Personal Considerations – For example: Close relatives in the United States and country of birth or citizenship; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
- Special Factors – For example: Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access (or lack of access) to social institutions or structures (official or unofficial) for support, guidance, or protection.
In addition to the showing of hardship, the applicant must show to USCIS that they are deserving of such a benefit. The positive aspects of their being in the United States outweigh any negative aspects. Negative aspects would include any criminal violations.
What Criminal convictions make me inadmissible?
Criminal grounds of inadmissibility include, among others, controlled substance violations, convictions for crime involving moral turpitude (“CIMT”), two or more convictions for which the aggregate sentence was 5 years or more, and prostitution. However, if there is a CIMT conviction in an individual’s past, he would not be inadmissible if he falls under recognized exceptions.
Under the petty offense exception, the offender is not inadmissible if: (1) he has committed only one crime; (2) the maximum penalty possible for this crime does not exceed one year imprisonment; and (3) the offender was not sentenced to more than 6 months of imprisonment. Under the youthful offender exception, the person is not inadmissible if: (1) he has committed only one crime; (2) his crime was committed when he was under 18 years of age; and (3) his crime was committed more than 5 years before the date of his application for a visa or admission into the US.
What Are My Options if I Am Not Granted an I-601A Provisional Waiver?
While you cannot appeal a decision by USCIS to deny your application for an I-601A provisional waiver, you have the ability to apply a second time. If you choose to apply a second time, you must demonstrate that you and your immediate relative, fulfill the requirement of extreme hardship.
However, you should be aware that USCIS will be looking to see if your circumstances have changed for the worse from the first, denied application, to the second application. For example, extreme hardship may not have been adequately proven with the first application, but something has changed that would now qualify as extreme hardship.