New Stateside Provisional Waiver

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)
  • 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

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.

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