If you’re a green card seeker facing a long wait abroad due to unlawful presence and aren’t eligible to adjust your status within the United States, there’s a potential solution: filing for a provisional unlawful presence waiver, or stateside waiver as it is commonly known. In the following sections of this guide, we will focus on the finer details of this waiver, terms of qualification, and what to consider when seeking the waiver.
Deciphering the Provisional Waiver
To those applicants who do not meet the requirement to change status within the country, green card, many challenges come their way when it comes to the immigration process. This leads to increased time that individuals spend unlawfully in the U. S in detention or deported to foreign countries away from their families. However, a mechanism called provisional unlawful presence waiver, provided by I. N. A. § 212(a)(9)(B)(v) and 8 U. S. C. § 1182(a)(9)(B)(v), is somewhat of a lifeline humanity has been given.
Who Qualifies for the Provisional Waiver?
However, it is essential to understand that despite the complexity of the protocol, you have to identify whether you meet the requirements for the provisional waiver. This waiver is not absolute and only applies under certain circumstances or specific criteria. To determine whether you are eligible for a provisional waiver, please see the question: “Am I Eligible for a Provisional Waiver of the Three- or Ten-Year Time Bar? “
Addressing Concerns About Providing Personal Information
This is probably because as an immigrant compiling and submitting your details such as your name and address to USCIS may arouse your concern in one way or the other. This is a plausible concern particularly when answering the question with regards to whether or not the respondent resides in the U. S. with lawful status. But one needs to know that if and when there will be a positive outcome, the advantages that it will bring must also be considered alongside the numerous disadvantages attached to it.
USCIS Referrals to ICE
It is most likely due to concerns that information provided to USCIS may result in your detention or referral for removal proceedings in the event your application is declined. Though these situations are unlikely, they are not unilateral and quite plausible. In your particular case, simply if your case is based on unlawful presence, then the information that you have provided cannot be used in this fashion.
The USCIS has stated that they will not forward Form I-601A data to ICE except in cases of a criminal past, fraud, or deciding factors that make the applicant a threat to national security or public safety. However one should not be careless as the USCIS laws may at times change and the president of MSDS may not be keen on implementing some of the policies.
Assessing Your Background and Risks
It does make sense to take an honest, realistic look at your experience before you submit your information to USCIS. What impact can the information in your background have on decisions that might lead to a detainment or deportation? Consider factors like:
Lying on a form needed for use by a government agency.
Multiple criminal convictions.
History of gang association.
These are associated or membership with groups that are linked to terrorist activities.
If any of the factors provided above are relevant to your situation, it is highly advisable to speak with a skilled immigration attorney to assess what particular course of action must be taken and what risks may ensue.
Avoid Applying If You Have Multiple Grounds of Inadmissibility
On various occasions in an attempt to get a visa, a person goes through a process of being evaluated for his/her admissibility to the United States. Despite a legal presence being a keyword for unlawful presence, there are many other grounds of inadmissibility; medical history, and criminality among them. It’s crucial to understand these inadmissibility grounds, which are detailed in “Inadmissibility: Waiting for the U. S. Department of State to Say When the U. S. Can Keep You Out. “
According to U.S. immigration law, where applicants have more than one ground of inadmissibility, Form I-601A cannot be used for the application of the provisional waiver. If they need permission, they have to apply for a waiver which is not available locally by Filling and Form I-601. Failure to adhere to this rule or applying through the wrong form leads to, at a minimum, the forfeiture of the application fee and, worse, a sequence of enforcement actions against you. It is advisable to speak to an immigration attorney in case some issues make you ineligible for provisional waiver on grounds apart from unlawful presence before proceeding to apply for the visa and waiver.
Consider the “Extreme Hardship” Requirement
While the provisional waiver expedites the process for many U.S. citizens and lawful permanent residents seeking green cards for their qualifying relatives, it’s vital to note that it doesn’t grant lawful status, employment authorization, protection from deportation, or automatic green card approval.
Before investing time and resources in your stateside provisional waiver application, ensure you meet all the prerequisites. An essential factor in your application’s success is demonstrating the “extreme hardship” that your U.S. citizen spouse or parent would endure if your case were denied for unlawful presence.
This requirement demands substantial evidence and a compelling argument. Collaborating with an immigration attorney can streamline this process, helping you build a persuasive application package for USCIS.
However, if you’re uncertain about your ability to prove extreme hardship, consider delaying your application until you have the necessary supporting evidence. To gain a deeper understanding of what qualifies as extreme hardship, consult the resource, “What Are the Chances that My I-601 Waiver Will Be Granted?”
