How do provisional waivers work?

 Posted on May 01, 2020 in family-based immigration

Immigrants who have entered the United States unlawfully in the past may worry that they have no way of returning to the country. If you came to the country in this manner, you may face a three or ten-year bar on lawful reentry. Yet, if you have relatives who have legal status in the United States, you can apply for a provisional waiver on this bar.

Understanding how waivers work

If you decide to apply for a green card, you must to do so in your home country before returning to the United States. But if you entered the country without a visa, your ability to return could end up in jeopardy. A provisional waiver will help you return to the United States during this process. You must file the waiver in the United States, though, for it to be valid.

Waiver eligibility

Your eligibility for a provisional waiver depends on several factors. One is if you have naturalized United States citizens as relatives. You can also qualify for a waiver if your relatives hold permanent legal resident status. Yet, you may be unable to receive a waiver if you remained in the country unauthorized for over one year during your past visit. If you spent between 180 days and one year in the country on multiple visits without authorization, you may not qualify for a waiver as well. And if you reentered the United States unlawfully after these visits, or have faced removal in the past, you may find yourself ineligible for a waiver.

In each of these cases, you must prove that your being in the United States is necessary to avoid extreme hardship. This language remains undefined in current immigration laws. But it often reflects the necessity of your presence to care for relatives. If you are the primary caretaker for a relative, or if they return with you to your home country and face inadequate conditions or treatment, you will likely meet the threshold.

What waivers allow

Waivers do not guarantee that you can stay in the United States indefinitely. Nor do they mean that your visa will receive automatic approval, or that you can remain in the country if your visa faces rejection. What waivers do authorize, though, is for you to return to the country in cases of extreme hardship while applying for a green card. And they will allow you to expedite your visa process and remain here while doing so.