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Provisional Waivers I- The basics

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.

On January 2, 2013, USCIS announced a long-awaited rule on "provisional waivers" of inadmissibility for people applying for residency through a United States citizen spouse, child or parent. For those eligible, the new process should create a streamlined-and hopefully less risky-process. Because this rule covers a number of complicated issues, we will discuss it in a series of posts. First, here are the basics.

Overview- What is a waiver of inadmissibility and who needs one?

Simply having a United States citizen parent, child or spouse does not grant lawful permanent residency by itself. Instead, foreign nationals with qualifying relatives must apply for residency together with an immigrant visa petition filed by that relative.

Generally, however, people who entered the United States illegally cannot file for residency in this country. (There are some key exceptions to this rule, which should be discussed with an attorney.) Therefore, in order to seek lawful permanent residency, they have to leave the U.S., and apply for an immigrant visa in their home country.

There is a huge catch to this system, however. People who have been here illegally for over one year and then depart the U.S. generally cannot return to the United States for ten years. This law is commonly called the "ten year bar." There is also a similar "three year bar" for people who have been here unlawfully for over 6 months, but less than one year. (For simplicity, however, only the ten year bar will be discussed here.) As a result of the ten year bar, therefore, people departing the U.S. for an immigrant visa interview may actually find themselves barred from returning to this country for ten years.

Thankfully, there is a potential waiver of this ground of inadmissibility. Immigration authorities may waive the ten year bar for applicants who demonstrate that if they are not allowed to return then a U.S. citizen or permanent resident spouse or parent will suffer "extreme hardship". Applicants must also demonstrate that they deserve a favorable exercise of discretion.

It is important to note that these waiver applications are frequently denied. In fact, the government has indicated that they only granted about 57% of the waiver applications filed between 2001 and 2010. That means that thousands of people who left the U.S. hoping to promptly return as a lawful permanent resident were instead prevented from returning for ten years. Also, even if a waiver is granted, it can take months or over a year to process.

The new "provisional waiver" process

More details will be provided in following blog posts, but the new provisional waiver process can make this process easier and less risky for those who qualify. To be clear, a provisional waiver does not change the law itself-people who entered the United States without inspection will still need to depart the United States in order to file for residency.

The new process, however, allows people to apply for a provisional waiver of the ten year bar and wait for a response without leaving the U.S. If the provisional waiver is granted, foreign nationals will be able to depart the U.S. for a consular interview, and be approved very quickly if there are no other problems. This means that they will be separated from their families only for a short time.

If the provisional waiver application is denied, foreign nationals will still be in the United States, rather than being stuck outside the country with no way to return for ten years. DHS has said that it would not place people in removal proceedings simply because their provisional waiver was denied, unless there were additional factors such as fraud or a criminal history. Therefore, while those who file for a provisional waiver and are denied will lose time and money, most will face much less damage to their lives than if they were denied at a consulate abroad.

For more detail about the process, please read our next blog post "Provisional Waivers II-The Requirements".

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