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Provisional Waivers II- The Requirements

Please note: because of the complexity and importance of the DHS's announcement on provisional waivers, we have separated discussion of the new program into three parts:

I. The Basics

II. The Requirements

III. Potential Concerns.

These parts are increasingly complex. If you have trouble understanding a later section, please be sure to start from Part I.

While the new provisional waiver process should help many people apply for residency with less risk and separation from family members, the program has some very strict requirements which limit how many people will be able to use it. First, though DHS announced the program January 2, 2013, it will not actually be possible to file for a provisional waiver until March 4, 2013.

Other requirements include:

1. The applicant for residency must be in the United States when the provisional waiver is filed, and must appear for a biometrics (fingerprinting and/or photo) collection appointment in the U.S.

2. The applicant must be the beneficiary of an "immediate relative" visa petition. This means the applicant must have a United States citizen spouse, United States citizen parent (if the visa petition is filed when the applicant is under 21), or a United States citizen son or daughter (as long as the son or daughter is over 21).

3. The immediate relative visa petition filed for the applicant has been approved, meaning USCIS has verified that a qualifying relationship exists.

4. The applicant must still demonstrate "extreme hardship" to a qualifying relative. Furthermore, the only qualifying relatives for a provisional waiver are a United States citizen spouse or parent. To apply for a waiver based on hardship to a permanent resident parent or spouse, foreign nationals must apply for a regular waiver at a consulate abroad.

5. The provisional waiver process is only available for the three or ten year bars to admission, and no others, such as fraud or criminal grounds. USCIS will deny a provisional waiver even if it has "reason to believe" the applicant is inadmissible for a ground other than the three or ten year bars.

6. The waiver is not available to anyone with a final order of removal, or who is in removal proceedings unless they have been administratively closed, which is a way in which the proceedings are indefinitely postponed. Foreign nationals in removal proceedings, or with prior removal orders, should consult with an attorney in detail about this issue.

7. The applicant is seventeen or older.

Again, please keep in mind that there are some additional requirements which are either very technical or which will apply to a relatively small number of people. Nonetheless, it is important to assess every situation individually before deciding whether to apply for a provisional waiver, and certainly before leaving the U.S.

For some specific reasons to be cautious, please see "Provisional Waivers III- Potential Concerns".

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