New Stateside Provisional Waiver
On March 4, 2013, 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.
Unfortunately, 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
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.
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, the individual may then submit immigrant visa applications
and schedule an interview at the consulate. So long as the consular official
approves the immigrant visa application, the applicant will then re-enter
the United States as a permanent resident.
The eligibility requirements for the stateside waiver are:
- I-130 petitioner must be an immediate relative (U.S. citizen spouse, parent, or child)
- Approved I-130
- 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
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.
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) 870-0340 to schedule an initial consultation to determine whether you may benefit
from the new stateside provisional waiver. We represent clients worldwide.