Provisional Waivers III- Potential Concerns

by | Jan 2, 2013 | Firm News |

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.

Follow us on Twitter:


Big News- Firm Merger and Consolidation to Oakland!

Bean + Lloyd, LLP and Park & Taylor has formed Bean, Lloyd, Mukherji, & Taylor, LLP

San Francisco Office has Moved to Join Oakland Office

We are thrilled to announce the merger of Bean + Lloyd, LLP and Park & Taylor, two highly respected Bay Area immigration law firms, which took place in April 2021. The new firm, Bean, Lloyd, Mukherji, & Taylor, LLP, combines decades of immigration experience in the subfields of family-based immigration, removal defense, asylum, humanitarian visas, and criminal immigration.

Additionally, the former Park & Taylor office in San Francisco has moved to join the Oakland office at 110 11th Street, Oakland, CA 94607. While the office is temporarily closed to the public due to COVID-19, our staff is still available by phone, email, and text message, and all consultations and client appointments will continue by phone or video. We look forward to physically reopening our expanded and improved Oakland office when it is safe to do so.

Partners Jesse Lloyd and Anita Mukherji, both certified specialists in immigration and nationality law by the California State Bar, lead the firm. Karyn Taylor has joined as Of Counsel, and Angela Bean remains as partner and Anna von Herrmann as Of Counsel. The Park & Taylor staff have brought their two decades of experience to the team.

Please contact us at (510) 433-1900 or with any inquiries.

¡Anuncio importante- Unión y Consolidación de Dos Bufetes! Bean + Lloyd, LLP y Park & Taylor han Formado Bean, Lloyd, Mukherji, & Taylor, LLP

La oficina de Park & Taylor se ha mudado para unirse a la oficina de Oakland

Estamos emocionados de anunciar la unión entre Bean + Lloyd, LLP y Park & Taylor, dos bufetes de inmigración muy respetados en el Área de la Bahía, lo cual ocurrió en abril del 2021. El bufete nuevo, Bean, Lloyd, Mukherji, & Taylor, LLP, combina décadas de experiencia en inmigración familiar, defensa de deportación, asilo, visas humanitarias, e inmigración criminal.

Además, la antigua oficina de Park & Taylor en San Francisco se ha mudado para unirse a la oficina de Oakland en 110 11th Street, Oakland, CA 94607. Nuestra oficina está temporalmente cerrada al público debido a COVID-19. Nuestro personal seguirá estando disponible por teléfono, correo electrónico y texto. Todas las consultas y citas de clientes, continuarán por teléfono o videollamada. Estamos emocionados para reabrir físicamente nuestra ampliada y mejorada oficina de Oakland cuando sea seguro hacerlo.

Los socios Jesse Lloyd y Anita Mukherji, dos especialistas certificados en ley de inmigración y nacionalidad por la Barra del Estado de California, dirigen el bufete. Karyn Taylor es abogada retirada pero se ha unido al bufete, Angela Bean permanece como socia y Anna von Herrmann sigue siendo parte del bufete. El personal de Park & Taylor ha compartido sus dos décadas de experiencia con el equipo.

Por favor contáctenos al (510) 433-1900 o con sus preguntas.

You have Successfully Subscribed!