The Provisional Waiver

March 4, 2013 marked the first day that immigrant visa applicants could file provisional waivers for unlawful presence. Under the prior procedure, individuals had to leave the U.S. before applying for the waiver, thus living abroad (and likely apart) from U.S. citizen family. If those previous statements make sense to you, you have probably already done your celebratory dance for this significant step forward in U.S. immigration procedures. If that statement made you turn your face in confusion, you are not alone, but after reading more you may realize that you too have reason to celebrate. Although the process just started in March, and we are waiting to see how the system is fully implemented, there is cause for optimism. Ready for a ride through the whirlwind of waivers? Ready.

The new procedure affects certain individuals who are subject to three- and ten-year bars to admission into the U.S. for having unlawful presence in the U.S. (for example, after entering without a visa). Let me break that down. A person can begin accruing unlawful presence in the U.S. by a variety of ways, but the most common are by entering without a valid visa or by violating the terms of an existing valid visa stay in the U.S. If a person has accrued enough unlawful presence in the U.S. because, for example, he entered without a visa, then as soon as he departs the U.S. he will automatically trigger a penalty (three or ten years) to returning to the U.S. The length of penalty depends on the length of unlawful presence in the U.S. If a person has over 180 days but less than one year of unlawful presence, he is subject to a three-year bar to reentry. If a person has over one year or more of unlawful presence, he triggers a ten-year penalty. Still with me? Good.

Immigration law allows for waivers of those penalties, commonly called “hardship waivers.” The term “hardship waiver” stems from the standard for approving the waivers. To get the waiver of the unlawful presence penalty approved, the applicant must show that he has a U.S. citizen or lawful permanent resident (a.k.a. “green card holder”) spouse or parent who will suffer “extreme hardship” if the waiver is denied. (Notably, children cannot be the qualifying relative for an unlawful presence waiver.) Essentially, the applicant will need to show that if he is denied admission to the U.S., the citizen or resident spouse or parent will suffer extreme hardship if he or she is 1) forced to live apart from the applicant and 2) forced to live abroad to remain united with the applicant. What is extreme hardship? In short, it is something beyond ordinary. This of course begs the question, what is ordinary about the consequences of forcing spouses to live apart?

Under the previous procedure, a person who could not apply for a green card in the U.S. (for example, through marriage to a U.S. citizen) and was subject to an unlawful presence bar would 1) leave the U.S. for the interview; 2) trigger the penalty upon departure; 3) attend the visa interview abroad; 4) file the waiver at, or after, the interview; 5) wait for a decision on the waiver while abroad; 6) wait some more; and 7) remain outside of the U.S. until a decision was made. Of course, only if the waiver was approved (effectively waiving the penalty) could the individual then receive the visa and return. If the waiver was not granted, the applicant was denied the visa and was then stuck with essentially three options: 1) file a new waiver (more time and money); 2) appeal (more money and T-I-M-E, to state it mildly, considering that up until very recently, appeals were taking around twenty-six months); or the utterly undesirable option to 3) wait abroad for the penalty to run. All the while, spouses were forced to live apart, children were separated from parents, and U.S. citizens were forced to live abroad, severing ties to family, home, and employment and all other opportunities and resources in the U.S.

Although under the new provisional waiver procedures individuals will still have to depart for the interview, the integral change will now allow applicants to file for the waiver before leaving for the interview. Therefore, families will remain together in the U.S. while the waiver is decided. With the new process, the agency implemented a change to alleviate the burdensome and lengthy separation times that the old procedure forced on families. One must be eligible, however, to file for the waiver. USCIS has a helpful site explaining the eligibility requirements and filing process. Note, among the requirements, provisional waivers are only for the three- and ten-year unlawful presence bars; they will not waive other inadmissibility grounds (such as criminal and misrepresentation bars). That is why the waiver is called “provisional.” It only applies to the unlawful presence bars. The waiver’s approval does not preclude a denial should the consulate officer conclude that the applicant is inadmissible on another ground. In addition to reading the USCIS link, I suggest that a potential applicant consult with an experienced immigration attorney (private/nonprofit) to review eligibility for the provisional waiver process, determine the strength of the waiver case, and provide guidance in developing the hardship factors. Since the provisional waiver process is only getting started, it will be important to learn from an experienced practitioner exactly how the process is being implemented.

While the provisional waiver is a far cry from much needed immigration reform, it is certainly a step in the right direction. As an immigration attorney, I have known dozens of clients who have suffered through the forced separation that the consulate process and unlawful presence penalties induce. I have seen U.S. citizens lose homes and jobs because of the financial and emotional strain of separation while waivers were pending. Homes were foreclosed on; bankruptcies were filed; educational opportunities were lost. Citizens had children without their spouses at their side, and citizens were unable to witness births because they had to stay in the U.S., maintain a job, and keep the family (at home and abroad) afloat. Husbands suffered through sleepless nights. Mothers’ tender touches were felt only through Skype. Children’s hands reached out for absent parents in the night.

What I have witnessed is just a fraction of the total impact that the waiver bars and separation have caused, but I have no doubt my cases are an all too accurate sampling of the greater harm that those penalties have generated. That is why the provisional waiver will be a very welcome change. While consular processing with a waiver is a wild and difficult ride, I can acknowledge the good that also results (although, of course, the government certainly makes you earn it). The approval brings a life-altering swing in status from “unlawful” and unwanted to that of lawful permanent resident with rights and privileges in the U.S.

Thank you for joining me on this ride through the provisional waiver. I look forward to more developments and improvements to our immigration system as both sides cross the aisle to meet somewhere in the middle. More changes are needed to fix our broken immigration system, but as an attorney who has witnessed the suffering of far too many families, I admit I did a little dance when I learned that certain people (yes, they are people) could stay together while the waiver was adjudicated. These will be interesting times, to say the least (and the obvious). March 4th marked the beginning for provisional waivers. It got us off on the right foot in 2013, hopefully setting the tone for greater reform to come. Looking forward to having you join me on the ride again soon.

*Originally published by Robert C. Milla at The Immigration Pages on March 4, 2013.

If you have questions about the provisional waiver, please contact Robert C. Milla for a consultation.