On March 4, 2014, USCIS will begin accepting applications for the new stateside
provisional waiver. Currently, individuals who entered the United States
without a visa are ineligible to adjust status (become a permanent resident
from within the U.S.) unless an I-130 or I-140 was filed on his or her
behalf prior to April 30, 2001. Therefore, most people who entered without
inspection are required to apply for an immigrant visa at a U.S. consulate.
Why do I need a waiver?
Anyone who has been in the U.S. for more than 6 months without legal status
becomes subject to an unlawful presence bar upon departure from the United
States. The bar requires the individual to remain outside the U.S. for
3 or 10 years (10 years if present without legal status for 1+ years)
prior to applying for an immigrant visa, unless granted an unlawful presence waiver.
Under the current process, individuals must first leave the U.S., apply
for an immigrant visa at the consulate, and then submit a waiver application.
He or she must then wait outside the U.S. until the waiver application
is adjudicated (often a year or more). If the waiver is approved, the
consulate will process the immigrant visa application. If denied, the
applicant must remain outside the U.S. for the entire 3 or 10 year period.
How does this new waiver process help me?
The purpose of the stateside waiver process is to minimize the amount of
time family members are separated. The new stateside provisional waiver
will allow certain relatives of U.S. citizens to file a waiver application
from within the U.S., and remain in the United States while USCIS adjudicates
the application. If the provisional waiver is approved, you may then submit
immigrant visa applications and schedule an interview at the consulate.
So long as the consular official approves the immigrant visa application,
you will re-enter the United States as a permanent resident.
Am I eligible for the stateside waiver?
The eligibility requirements for the stateside waiver are:
- I-130 petitioner must be an immediate relative (U.S. citizen spouse, parent, or child)
- Payment of immigrant visa processing fees
- NVC notification of intent to file provisional waiver application
- Must have a qualifying relative – a U.S. citizen spouse or parent
– NOTE: Children are not considered qualifying relatives for purposes
of the provisional waiver.
- Must have no additional grounds of inadmissibility – NOTE: If the
consular official determines additional grounds of inadmissibility, the
provisional waiver approval becomes void.
- Demonstrate extreme hardship to the qualifying relative
- Not have an outstanding order or removal, or have previously been removed
What do I need to prove?
You must prove that your U.S. citizen spouse or parent would experience
extreme hardship if the waiver is not granted. Extreme hardship requires
proof that the hardship experienced by the qualifying relative would be
different or more extreme than that experienced by other people in the
same or similar situation. Each hardship case is different, and factors
are determined by the qualifying relative's specific lifestyle and
issues. These may include financial, emotional, medical, education, employment,
and other factors.
What else do I need to know?
- Children are not considered qualifying relatives. Although your USC child
may be the I-130 petitioner, you must demonstrate hardship to a USC spouse
or parent to qualify for the waiver.
- You are only eligible for the provisional waiver if unlawful presence is
your only ground of inadmissibility. If you are inadmissible for any other
reason, you must follow the old process.
- If you are currently in removal proceedings there are additional procedural
requirements that must be fulfilled prior to filing.
- If a consular interview was scheduled on your behalf (date the interview
was set, not the date of the interview) prior to January 3, 2013, you
are ineligible for the stateside waiver process.
Hardship waiver applications are extremely labor-intensive, require extensive
documentation, and have a high evidentiary requirement. Kelli Y Allen
Immigration Law will work with you to determine all possible relevant
factors, and present a comprehensive waiver application packet to maximize
the chances of approval. Call 704-727-4900 to schedule a complimentary
telephone consultation to determine whether you may benefit from the new
stateside provisional waiver.