Provisional Unlawful Presence Waiver

bordercrossingGiven all the recent news about Comprehensive Immigration Reform that has yet to pass through Congress for Obama to sign, it is easy to miss one piece of reform enacted by the US Citizen and Immigration Services (USCIS) this past spring that already can benefit a number of undocumented (illegal) immigrants. 

Under the immigration law, an undocumented immigrant who has stayed in the US unlawfully for over 180 days becomes “inadmissible” and will not be allowed to return to the US for three years if he leaves the country.  In order to cure his undocumented immigrant and inadmissibility status, under the old laws the undocumented immigrant had to first return to his home country, appear for a visa interview and have a consular officer tell him that he needed to apply for waiver of inadmissibility before the visa would even be considered.

However, on March 4, 2013, USCIS introduced a new waiver called the Provisional Unlawful Presence Waiver, which is designed to avoid extreme hardship to immediate relatives of the  undocumented immigrants who are parents, spouses and children of US Citizens can now use Form I-601A to apply for a waiver of inadmissibility status while still in the United States and wait for approval before leaving the US for the visa interview in their home country. 

If you are undocumented, the Provisional Waiver confers two great benefits.  First, it gives you a clear and secure path towards a green card while you are in the United States, without having to leave and take the chance you may never be able to come back.  You can apply for the waiver here and wait for waiver approval before deciding whether you should take the chance to leave the US.  . If approved, you can leave the United States with the assurance that your illegal presence has already been forgiven.  If denied, well, you are still in the United States, in no worse off a position than you are already in today.

Second, it greatly shortens the time you need to wait outside of the United States for a waiver of inadmissibility and your immigration visa.  USCIS is notorious for taking a long time to review and make decisions on all waivers in general.  Decisions may commonly take up to a year and sometimes even longer. With the Provisional Waiver, the benefit is that you are waiting here in the United States during the first step of the process rather than self-deporting yourself back to your home country.

The standards for getting a Provisional Waiver approved are quite challenging. An Immigration Officer has to determine that your leaving the United States would result in severe hardship to your US citizen spouse, children, or parent. USCIS does not have a strict definition for hardship. It may be based on any combination of factors: economic, medical, behavioral, and /or social.  What is important is that the application is thorough, consistent and well-presented.  It is therefore advisable to consult with an experienced and trustworthy immigration attorney who can give your application the best chance for success.