Starting 2013 out positively, we have good news from USCIS. Provisional Waivers are now a reality. Those who follow us on Facebook will have seen our recent postings on Provisional Waivers.
USCIS released its announcement here setting out the basics of the Provisional Waiver process. Since this is the topic of a lot of discussion, we thought that we would break it down into the “least you need to know” format. Here goes:
1) What does this new policy mean to immigrants and their families? It means undocumented immigrants who came to the USA without a visa — usually that means by walking across a border, or hiding in the back of a car or truck — may be able to get their greencards without being stuck overseas for 6-12 months waiting for a waiver.
In the past, if a person came to the United States without documents, they faced a tough choice if they married a U.S. citizen: remain in the United States and hope the law changes, or return to the home country to get the greencard from the U.S. Embassy or consulate. Unfortunately, they had often been in the United States for a while, meaning they were barred from coming back for 10 years unless the unlawful presence was “waived” (meaning forgiven by USCIS) and granted a written waiver. The immigrant would wait in their home country for 6-12 months waiting for an answer on the waiver. If it was granted, they could rejoin their family. If it was denied, they were stuck overseas. Generally, this hurt the U.S. citizen family, who lost an important wage-earner, a spouse, and a father while this process was ongoing.
2. Who qualifies? This new policy doesn’t help everyone. The only people who can apply for the Provisional Waiver must be the spouse, parents, and children of a U.S. citizen (meaning unmarried and under 21 years old). The technical word for these relations is “immediate relatives.” These are the only persons who can use the Provisional Waiver at this time. In addition, the ONLY problem the provisional waiver will fix is being in the United States unlawfully. If there are other problems, like a previous deportation order, criminal issues, or fraud, this policy is unlikely to assist you.
In addition, you must have an approved I-130 Immigrant Petition approved, and must NOT be in removal or deportation proceedings (unless they are administratively closed or terminated). Of course, remember that we can apply for an get an I-130 approved. And court hearings can be terminated or administratively closed; just because someone doesn’t qualify today doesn’t meant that a good lawyer can’t take steps to get you qualified for the Provisional Waiver.
4. What else do I need to know? One must remember that “Provisional” means that the government has reviewed your case and thinks that a waiver should be granted. However, if the Embassy learns new, negative information or the facts change, the waiver could be revoked. And the immigrant is stuck overseas!
Also, the Provisional Waiver doesn’t provide any legal status, doesn’t get the immigrant a work card, or Social Security Card, or a drivers license. It’s just for use at the Embassy.
3. When can we file for the Provisional Waiver? The new policy goes into effect on March 4, 2013. Hogan & Vandenberg are already identifying current clients and persons we have consulted with who appear to qualify. If you think you or your family member may qualify, please reach out and set up a consultation.
Bottom line: this policy, long awaited, is going to make a lot of immigrants and their families happy. Let’s hope that 2013 brings about Comprehensive Immigration Reform and the DREAM Act so that many more immigrants and their families can stay together.
Immigration Law Monitor 