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Provisional Waivers III- Potential Concerns

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.

As discussed in parts I and II, the new provisional waiver process will likely be a great opportunity for the limited but substantial number of people who will be eligible for the system. Still, there are some key issues applicants should keep in mind.

Don't forget the word "provisional" or that this only waives the three/ten-year bar. As the name implies, provisional waivers do not guarantee that applicants will be admitted if they leave the U.S. If there is negative information which comes up after the provisional waiver is granted, or it turns out the applicant is inadmissible on another ground in addition to the three/ten year bar, the waiver will not be valid.

If USCIS has "reason to believe" that an applicant is barred from residency for another reason in addition to the three/ten year bar, they will deny the provisional waiver application. If a provisional waiver is granted, and an applicant leaves the U.S. and a new problem arises, he or she may be delayed in returning to the U.S., or may not be able to come back at all.

Risks from denial. Most applicants for provisional waivers will be out of status, and therefore subject to removal proceedings. As a result, applicants may be concerned about applicants presenting themselves to immigration authorities, especially if they are denied. DHS has confirmed that they will be following a policy to only place in removal proceedings those designated as priorities- people with serious criminal histories, fraud, or who pose a threat to the community or national security. A denial of a provisional waiver, by itself, should not be grounds for placement in removal proceedings. Again, however, whether or not to put someone in removal proceedings is ultimately up to DHS discretion.

Keep in mind that fraud, criminal convictions, and presenting a danger to security or safety are also frequently tied to other grounds of ineligibility for residency. Therefore, anyone with these potential concerns should be very cautious before applying for a provisional waiver.

Many provisional waiver applications will likely be denied. The requirements for a waiver, especially demonstrating "extreme hardship" to a qualifying relative is very difficult. DHS reported that it approved approximately 57% of the waiver applications for the ten year bar filed with a consulate between 2001 and 2010. This overall rate is much lower than in some consulates, such as Ciudad Juarez, Mexico.

This 57% approval rate does not mean that they will approve provisional waivers at the same rate, or that an individual applicant has a 57% chance of approval. It does mean, however, that applicants need to take care to prepare thorough applications. They should also be prepared for a potential denial. They should also not quit a job or take on a large loan assuming that they will become residents.

This is a new system. Because it is new, no one knows exactly how long to expect the waiver applications to take. It is also not clear how strict the DHS standards will be. Keep in mind that the 57% grant rate described above is the average of a wide variety of grant rates from different offices. Finally, while things should work smoothly after someone is approved for a provisional waiver and goes to a consulate, the process has not actually been tried yet.

Only hardship to United States citizen spouses or parents is considered. The standard waiver of the three/ten year bar requires extreme hardship to spouses or parents, but also considers those family members if they are lawful permanent residents. In contrast, the provisional waiver application only counts United States citizen family members. Also, neither the regular nor provisional waiver considers hardship to United States citizen children.

These concerns do not mean the provisional waiver program isn't a benefit. There are also very serious risks associated with living in the U.S. without immigration status, and obtaining residency can greatly improve the lives of many applicants. While the new system is far from perfect, it still presents a great opportunity for many people, as long as they proceed carefully.

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