If you have no legal immigration status in the United States, but have a spouse or a grown-up child who is a U.S. citizen and wants to file a petition for you, there is one important thing you need to know: an approved petition is just a basis, or prerequisite, for applying for a permanent resident status and you will still need to meet number of other requirements in order to qualify.
One of the most important requirements is that you have entered the United States legally. If a person entered the United States illegally, as a general rule, she will have to apply for an immigrant visa through a U.S. consulate abroad. However, you may be required to wait 3 or 10 years outside the United States before you can return, as a “penalty” for the time spent illegally in the country. For many immigrants, who have a family and young children in the United States, it is not a preferred option.
To avoid this harsh “penalty,” one may apply for a waiver that is that her unlawful presence be excused and she will not be allowed to get an immigrant visa and return to the United States without spending years abroad.
Traditionally, an application for such waiver could only be made after an immigrant visa was denied, after a person has already left the United States. That deterred many people, who could otherwise qualify, from applying because of the waiting time abroad, far from their families, and the risk that the application can be denied.
In early 2013, the USCIS introduced a new process known as a “provisional waiver,” which allows a person to apply for a waiver and wait for the decision in the United States, before leaving the country to attend a consular interview. Since its introduction, many immigrants have benefited from this process.
To qualify for a provisional waiver, a person must have an approved immigrant petition (family-based) and meet a number of other requirements, the most important of which is that the denial of her visa will result in “extreme hardship” to her U.S. citizen spouse or parent.
Hardship is a very important requirement and is central to this application. Although not specifically defined in the statute, generally “extreme hardship” is significantly more than a hardship typically caused by separation or relocation to another country. Not a single factor, but rather a combination of economic, physiological, health-related, and other consequences are considered. Please note that the provisional waiver application is only concerned with the hardship to a U.S. citizen spouse or parent of the applicant, not of her children and certainly not the applicant herself.
In addition to the discussed above, there are also other requirements, which must be met in order to qualify for a provisional waiver, which are beyond the scope of this article.
Further, it is very important to understand that provisional waiver only “excuses” unlawful presence in the United States. As such, if a person has other grounds making her ineligible to become a permanent resident, even if she has an approved provisional waiver, she may still be denied a visa. Such other grounds include criminal convictions and multiple illegal entries to the United States, to name just a few.
That is why, before you spend time and money filing a petition or applying for a provisional waiver of unlawful presence, it is essential that you consult with an experienced immigration attorney to determine if you are otherwise eligible to apply for an immigrant visa and discuss the risks related to the application.
DISCLAIMER: Attorney Advertising. The information presented in this article is for informational purposes only, is not intended as, and should not be construed as a legal advice. This information should not be relied upon without first seeking professional legal counsel.