What is a provisional waiver? To give you a little background, the easiest way to explain provisional waivers is to start out by talking about the Immigration and Nationality Act.
The Immigration and Nationality Act is basically the book of the laws in immigration. Immigration has a long list of problems that a person can have in immigration. All of that’s found in INA 212. That is the section of the Immigration and Nationality Act that talks about what problems a person can have and whether or not that problem can be overcome.
Read: INA: ACT 212
As immigration attorneys part of what we do with our clients is we talk to you and get tons of information from you to make sure that you’re eligible for the immigration benefit that you’re applying for. If you have any grounds of admissibility, which is a fancy way of saying that you have a problem on that list.
Then our next step would be to decide whether or not a waiver exists for you to ask for forgiveness to overcome that issue. We always hope that you don’t have any issues on that list. One of the common problems or one of the common issues that we see is an individual who has entered the United States and who is in the United States without documents.
Entering the United States without documents and being here in the United States without documents is one of the problems that a person can have on that list. What happens is if you’ve entered the United States and if you’ve been in the United States without documents, you’re accumulating unlawful presence, which means time here without documents. The more time you spend here without documents, the more issues that that can cause in terms of your options for being able to apply for immigration benefits.
For individuals who have entered the United States and been here without documents for more than 180 days or for more than a year, they have a three- and ten-year bar. That is immigration’s fancy way of saying that because of your time here in the United States without documents, you have to apply for a waiver to ask for forgiveness of the three- and ten-year bar.
The provision states that you’re not allowed to apply for an immigration benefit for three years if you’ve been here for more than 180 days or 10 years if you’ve been here for more than a year.
If you’re in that position and know that the provisional waiver was created to assist in this issue of being here without documents. The provisional waiver, the I-601A, is the application that we use to ask immigration to forgive that time here in the US without documents. Now, who’s eligible to apply for that?
Individuals who have that issue, if you have a spouse or parent that is a United States citizen or lawful permanent resident, you can ask for forgiveness of that ground of admissibility of that issue. This waiver is something we apply for with our clients who are being petitioned for by their spouse who is a lawful permanent resident or a United States citizen.
If you have that issue of entering and being here without documents, then typically the solution is applying for provisional waiver. You would be eligible for that if you’re married to a United States citizen or lawful permanent resident.
Steps in the Provisional Waiver Process
Part of the provisional waiver process includes multiple steps. Applying for the provisional waiver is only one part in the process. We typically like to break it down into three parts. That’s a good way to really understand what the provisional waiver is and the process that’s involved.
The first step in the case when we’re working with a couple is applying for a petition. That’s the very first step where we show immigration that the two of you have a relationship based on love. A bona fide marriage.
After that petition is sent and approved, then the next step in the process is applying for that provisional waiver. With the provisional waiver, we would be asking immigration for forgiveness. So, with the provisional waiver we make a very long argument about why you deserve to receive this waiver.
We have to show as part of the waiver that your lawful permanent resident spouse or United States citizen spouse would suffer something called extreme hardship. Extreme hardship is a fancy way of saying that they would suffer a lot. Which is more than just financial hardship or being separated from each other.
Once that waiver has been sent to immigration and it gets approved, the third step would be the consular interview. That’s a step where you would have to leave the United States and go to a US embassy or consulate abroad. At that interview, the officer would make their final determination about your eligibility and issue you a visa so you could re-enter the United States.
The provisional waiver process is a complex process. The last step is very important because you have to leave the United States. It’s very important that you receive legal advice to make sure that you are eligible for the provisional waiver and that you don’t have any other issues on the list.
Because when you leave the country to go to your interview, if you have other issues on the list that you haven’t asked for forgiveness for or other issues on the list that don’t have an option to be forgiven or there’s no waiver application, then you would be prevented from being able to re-enter the United States.
Be aware of the risks involved with applying for a provisional waiver. It’s really important to get legal advice to make sure you’re eligible and we can definitely help you do that.