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Provisional Waivers: Worth the Risk

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Provisional Waivers can be filed by immigrant spouses who entered without inspection

Part of the legal immigration services provided at Catholic Charities includes preparing and filing Provisional Waivers – often referred to as “stateside waivers.” We typically prepare these for spouses of US citizens to seek a waiver of inadmissibility for the three and ten-year bars due to unlawful presence and to remain in the US (stateside) while that waiver is being considered.

For the most part, a husband or wife entered the US without going through a checkpoint, often just walking across the border, and by doing that, avoided being inspected. Without that inspection, immigration law precludes them from applying for residency in the US through the adjustment of status process; instead they have to return home and go through consular processing. While the provisional waiver process has its flaws, most legal practitioners agree that there are still more pros than cons when assessing it.

There was a lot of excitement when the provisional waiver process was announced in January, 2013 by the former Secretary of Homeland Security Janet Napolitano.  Not long after, the excitement died down as flaws were quickly exposed in how they were being adjudicated and processed and unfortunately, that criticism remains today. However, prior to that announcement, immigrants seeking a waiver for unlawful presence were faced with leaving the US for a considerable amount of time (typically 6 – 12 months or more) while it was being considered at their home country’s embassy and this created an enormous amount of stress on them.

For those who didn’t want to face the threat of a permanent bar that could have been created as a result of leaving the US, few options remained beyond staying in an undocumented status or seeing if there was an outside chance they qualified for another immigration benefit such as TPS or asylum. And for those who decided to go forward with consular processing had to deal with the fact that they could be stranded outside of the US with no legal way to return to the lives they had created here. They also knew they had no choice but to endure whatever emotional strain or financial hardship came their way as a result of returning to their home country, sometimes a country they were afraid to return to because of gang activity and other violence.

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Provisional Waivers can be filed for using Form I-601A

Recently, we have been seeing an increase in immigrants who are married to a US citizen and are only now seeking to apply for consular processing (even though the provisional waiver has been available since 2013). I often hear “I heard of someone who got their green card this way” so word on the street is the waivers are getting approved to some extent.   Plus, since the provisional waiver is either granted or denied prior to leaving the country, they feel less anxious about the process. Not only is their required time out of the US shortened and therefore doable, they know prior to leaving that they will not be barred from reentering the US due to their time accrued here in an unlawful status.

Provisional waiver applications are still getting mixed reviews on how USCIS is adjudicating them and there has been valid criticism surrounding them including the high application fee, the relatively high denial rate, and the fact that there is no appeals process for denials. But the fact that USCIS tried to create an option for immigrants with unlawful presence to at least remain stateside while their waiver is being considered and save them the anguish of returning home to face many unknowns is still notable. Despite its shortcomings, I still find applying for a provisional waiver to be worth the risk for many clients I am coming across.  But I also have my fingers crossed USCIS will work harder towards figuring how to correct its flaws.

Sue Chaffee

Accredited Rep