EXPANDING OF PROVISIONAL LAW
The provisional waiver that forgives unlawful presence has been expanded so that more people qualify and more family members can obtain a green card despite having entered the United States without a visa. This is exciting news for immigrant families in our community.
Who is eligible under the new regulations?
Before, the provisional waiver was limited to those that could show that their US citizen spouse or parent would suffer extreme hardship. With the expansion of the provisional waiver program, the provisional waiver is now available to those individuals with parents or spouses that are lawful permanent residents.
First, to be eligible for a provisional waiver, there must be a visa available to you. You must be the beneficiary of an approved I-130 family petition or I-140 petition by your employer or a winner of the Diversity Visa Lottery.
Second, you must have a US citizen or lawful permanent resident spouse or parent that would experience extreme hardship if the waiver is not approved.
Third, you must be present in the United States at the time that you file the waiver, and you must have paid the fees for the immigrant visa before filing the waiver.
What does the provisional waiver forgive?
When you depart the United States after having been in the United States without permission for more than a year, then the punishment is that you can’t return to the United States for ten years.
Most people that have entered the United States without a visa must depart the United States and obtain an immigrant visa and reenter the United States in order to get their green card. Therefore, the moment they leave the US, they trigger the ten-year bar for having been in the US for more than one year without permission.
The provisional waiver forgives the unlawful presence before leaving the United States to go to your immigrant visa interview in your home country. With an approved provisional waiver, the immigrant visa applicant can return to the US without having to wait ten years outside the USA, assuming that there are no other grounds of inadmissibility.
When does this “new law” go into effect?
The expansion of the provisional waiver program went into effect on August 29, 2016.
What should I do if I think I may qualify for the provisional waiver?
You have to show that your spouse or parent would suffer extreme hardship if you weren’t allowed to be in the US with them or if they had to go to your home country. Extreme hardship standard is more than what a person would suffer based on mere separation. It is essential that you talk with an immigration attorney about your case. Proving that your spouse or parent would suffer extreme hardship is difficult and it takes an experienced immigration attorney to advise you on what evidence to collect and how best to prepare your case.