Provisional Waivers

Admin Santos Immigration/ May 22, 2016/ Immigration Practice/ 0 comments

As of March 4, 2013 spouses, parents, and children of U.S. citizens who have remained in the United States illegally for 180 days or more can request a provisional waiver of their unlawful presence while still in the United States. Previously, family members of U.S. citizens who were not eligible to get their green cards in the United States, because they entered the country illegally, for example, had to request a waiver from abroad, causing families to be separated for a period of several months, sometimes even years apart.
Under these new regulations, immediate relatives of U.S. citizens can apply for a provisional waiver here in the United States and can remain with their families while awaiting a decision. The immigrant will have to attend an immigrant visa interview at the U.S. consulate abroad in their home countries, but will NOT have to wait years outside of the United States in order to obtain a decision on their waiver application. Rather, the immigrant visa processing should take only a few days to a matter of a few weeks to complete.

To be eligible, you must:

  • Be 17 years of age or older
  • Be the spouse, unmarried child under 21, or parent (of a child over 21) of a U.S. citizen
  • Show that denial of your waiver will cause extreme hardship to your U.S. citizen spouse or
    parent (hardship to U.S. citizen children is not considered)
  • Be physically present in the United States to file your application for a provisional unlawful
    presence waiver and provide fingerprints
  • Not have been scheduled for an immigrant visa interview before January 3, 2013
  • Not be subject to any other immigration violations, besides being undocumented

If you have been placed in removal proceedings, you may still be eligible to apply if your case was “administratively closed” – that is, if the court has not scheduled any more future hearings on your case, or if your case has been terminated. If you were in removal proceedings and received a removal order –you must first reopen your removal order before you would be eligible for the waiver. There are different avenues for reopening your case, depending on how long ago you received a removal order, whether you were present for your removal hearing, whether you received proper notice of your hearing, and the equities of your individual case.

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