You are looking for a green card, but because you’ve been living in the United States without documentation, your unlawful presence could amount to a denial of your application. This guide explains how to use a ‘provisional waiver’ to overcome the risk that your unlawful presence will deny your application for legal permanent resident status.
Understanding the Problem
If you have been living in the U.S. without documentation, you must also travel abroad for the green card interview with a US consulate in your home country, since illegal entry to the United States typically disqualifies an alien from adjusting status in the United States. The new law also carries the risk of having your earlier unlawful presence discovered at the consulate interview and resulting in a denial of your immigrant visa.
The Solution: Provisional Waiver
A stateside waiver can help you in this situation. This waiver addresses the issue of unlawful presence. Here’s what you need to know:
What is a Provisional Waiver
Benefit: Allows you to stay in the U.S. while USCIS reviews your waiver request.
Approval Advantage: If your waiver is approved, you can leave the U.S. knowing that your visa is likely to be approved. Though rare, a consular officer can still deny your visa.
Denial: If denied, you learn while still in the U.S. This allows you to reapply or seek legal advice before attending the consular interview.
Eligibility
Originally, only immediate relatives of U.S. citizens could apply. Since 2016, eligibility has expanded to include those qualifying for visas through family, employment, the diversity visa lottery, or special classifications. Key requirements include:
- You must be at least 17.
- Must be physically in the U.S. when applying.
- You cannot have other grounds of inadmissibility like criminal issues. If such issues arise, your approved waiver could be revoked.
- Show that denying the waiver would cause extreme hardship to your U.S. citizen or lawful permanent resident spouse or parent.
Application Process
Here are the steps to apply for a provisional waiver:
Program Acceptance: Secure a position in an eligible cultural exchange program.
Employer Petition: Your U.S. employer files a petition to USCIS detailing the program and how it meets requirements.
Visa Application: Once the petition is approved, complete your visa application, including forms, documents, and proof of approval.
Visa Interview: Attend an interview at a U.S. consulate or embassy. Be prepared to discuss your plans and qualifications.
Biometric Data: You might need to provide fingerprints and a photo.
Visa Issuance: If approved, you’ll receive your Q-1 Visa, allowing you to start your program in the U.S.
Next Steps
Applying for a provisional waiver can be complex. For detailed guidance, refer to resources like “How to Apply for a Provisional Waiver of Three- or Ten-Year Time Bar.” It’s wise to consult an experienced immigration attorney to help navigate the process.
Getting a green card, especially after living in the U.S. without proper documentation, can be tough. However, a provisional waiver can help you overcome the challenge of unlawful presence. Seek guidance from immigration professionals to ensure a smooth path to permanent residency.
