On January 5, 2013 United States Citizenship and Immigration Services (USCIS) published a regulation which may be of significant help to certain members of our population. A brief historical explanation may be helpful in understanding the purpose of the regulation.
There are certain groups of people who, in order to pursue Immigration Green Cards must leave the United States and appear at a United States Consulate in their home country to obtain the necessary visa. This discussion will be limited to people who are applying for Green Cards and are either the spouse of a US citizen or a parent of a US citizen. Many people who fall into this category are unlawfully present in the United States at this time. If a person is unlawfully present for a year or longer, and then travels outside the United States, he or she will not be allowed to return for 10 years. This is true for people who must process the Green Card case outside the United States. The main category of people who fall under this rule are those who previously entered the United States illegally, without going through an immigration Port of Entry. Historically, those individuals, when they appear at the US Consulate would be refused a visa because of his or her lengthy unlawful presence in the United States. United States immigration law has always provided for a "waiver" of 10 year period of inadmissibility. In order to qualify for that waiver, the applicant must be able to show an extreme hardship to either the applicant's spouse or parent who is a US citizen or Green Card Holder. This is slightly different from the requirements of the Provisional Waiver. In that situation, hardship will only be considered if the hardship is to the spouse or parent is a US Citizen.
The serious problem that visa applicants incur is that the entire visa process, which could take a year or longer, would have to be completed, the applicant interviewed at the Consulate, and then denied because of the unlawful presence grounds of inadmissibility. Then and only then would the applicant be eligible apply for the waiver. Obviously, this had to be done while the applicant was waiting outside the United States, separated from his or her family, and possibly facing whatever dangers may be inherent in the native country. Often waiver applications take anywhere from six months to two years to be decided.
In order to prevent this substantial and often devastating separation of family members, USCIS has determined that it will allow certain applicants who would otherwise be stuck outside of the country waiting for a waiver determination, to apply for the waiver within the United States prior to departure. If the waiver were granted, and there were no other reasons to deny the application, then the individual would then be able to proceed to the US consulate and return to the United States with his visa shortly thereafter.
The provisional waiver, as with many other Immigration waivers requires a showing of extreme hardship to the United States Citizen relative mentioned above. Extreme hardship has been defined as a hardship that is above and beyond the "normal" hardship suffered by one who will be separated from family members permanently or for a lengthy period of time. The conditional waiver regulation provides for no appeal in the event of the denial. Therefore, the original application must be carefully prepared and well documented. It is urged that anyone who is interested in applying for a "provisional waiver" or any waiver for that matter consult with a competent Immigration professional.
For more information, please contact Attorney Joseph M. Tapper.