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Provisional Waivers

Good News on Provisional Waivers

By W. John Vandenberg, Esq.
Hogan & Vandenberg LLC
www.hvlawgroup.com

Starting the New Year positively, we have good news from the U. S. Citizenship & Immigration Service. Provisional Waivers are now a reality.

Provisional waivers are the topic of a lot of discussion, and misunderstanding. No, this new rule doesn't mean that everyone gets a greencard, and it doesn't mean all immigrants get out of jail. It's not a new law, it's a new rule that is changing how immigrants apply for visas, and provides a way for them to avoid long waits overseas away from their families.

Here is the basic information:

1. What does this new rule 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. The wait time overseas will likely be much shorter -- perhaps two weeks.

Before March 4, 2013, 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 their home country to get the greencard from the U.S. Embassy or consulate. Usually they had been in the United States for a year or more. This meant that the moment they left the United States, they were automatically barred from coming back for 10 years unless their unlawful presence was "waived" (forgiven, in other words, by USCIS). This forgiveness was given by approval of an I-601 waiver application. Immigrants typically waited overseas for 6-12 months for an answer to their waiver. If it was granted, they got to rejoin their family. If it was denied, they were stuck overseas.

Generally, this previous rule 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 rule 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, you must obtain approval of an I-130 Immigrant Petition, and must NOT be in removal or deportation proceedings (unless they are administratively closed or terminated). Of course, remember that we can apply for, and get, an I-130 approved. And court hearings can be terminated or administratively closed; just because someone doesn't qualify today doesn't mean that a good lawyer can't take steps to get them qualified for the Provisional Waiver. But please remember: always tell the truth! Any lawyer who lies or encourages you to lie is not to be trusted.

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, you need to talk to us so we can determine if they will keep you from qualifying for the Provisional Waiver.

3. What is a waiver, and how do I ask for one?

A waiver is, as noted above, official forgiveness for breaking an immigration law. Here, in order to qualify, the only law broken has to be that the person was in the United States for more than 6 months without permission. An immigrant could do this by entering the United States illegally and staying, or overstaying their visitor visa.

To qualify for a waiver, the immigrant must file a form I-601 with USCIS and pay the filing fee of $585. In addition – and this is the hard part – they must show that, if they are not allowed to return, it will cause "extreme hardship" to a U.S. citizen or Lawful Permanent Resident spouse or parent. Hardship to the immigrant doesn't count! Neither does hardship to U.S. citizen children, at least not directly. If the immigrant doesn't show "extreme hardship," then the waiver will be denied. This argument is very technical, and you will need the assistance of a skilled immigration attorney to make the best argument possible.

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 would be stuck overseas!

Also, the Provisional Waiver doesn't provide any legal status in the United States, doesn't get the immigrant a work card, or Social Security Card, or a drivers license. It's just for use at the Embassy.

5. When can we file for the Provisional Waiver?

The new rule 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 rule, 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! To keep up to date on immigration news, follow our firm on Facebook and Twitter, and read our Blog, Immigration Law Monitor. You can contact us by phone at (610) 664-6271 to set up a consultation. We are happy to be of service.

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