Starting March 4, 2013, illegal or undocumented immigrants can apply for a provisional waiver to their green card applications. This waiver will help them obtain an answer to their visa application before they leave the country for their visa interview at the embassy or consulate.

How Does the Provisional Waiver Work?

Under the usual rules, an immigrant who is not eligible for an adjustment of status while remaining in the country must apply for an immigrant visa. Applying for the immigrant visa requires the immigrant to undergo an interview at an embassy or consulate located in their home country (or a country outside the U.S.).

If an immigrant is in the U.S. illegally, and leaves the country for their visa interview, they could potentially be deemed “inadmissible” and barred from re-entering the United States for three to ten years.

Under the provisional waiver, an undocumented immigrant living in the United States can apply for a waiver of inadmissibility before they leave the U.S. for their immigrant visa interview. While the waiver does not change the process, and the interview is still required, it can provide a level of certainty and relieve some of the pressure.

If the waiver is approved, then the immigrant can leave the United States for their interview and be allowed to return as a legal permanent resident. However, if the waiver is denied, then the immigrant will not receive a visa and the inadmissibility rule still applies—if the immigrant leaves the United States, they will not be able to return for three to ten years.

The plus side to applying for the provisional waiver is that you will receive a decision on your waiver before you have to leave the United States for your consular interview. The waiver process is intended to shorten the time that family members are separated while their loved ones obtain immigrant visas to become lawful permanent residents of the United States. If you are approved for a provisional waiver, you will still need to travel to your consular interview. However, you will not be barred from re-entering the country based on your status.

Am I Eligible for a Green Card Provisional Waiver?

There are several requirements to determine whether you are eligible to file for the provisional waiver. In order to apply, you must be:

  • At least 17 years old;
  • Currently residing in the United States;
  • An immediate relative to a U.S. Citizen or Lawful Permanent Resident;
  • Awaiting a consular interview; and
  • Inadmissible to the U.S. because you have spent more than 180 days in the country unlawfully.

You must also be allowed to be in the United States—in other words, you must not have committed any crimes or fraud that would bar you from being in the country.

For the purposes of the waiver “immediate relative” means that you are the spouse or child of U.S. citizens or lawful permanent residents. Any other relationship (like aunts or uncles or cousins or grandparents) does not qualify for the “immediate relative” part of eligibility.

In addition to being an immediate relative to a U.S. Citizen or Lawful Permanent Resident, you will have to show that your relative would suffer “extreme hardship” if the waiver is not granted. “Extreme hardship” is a tricky thing to show, and has extra requirements.

For example, the relative in question must be a spouse or a parent (not the child of the immigrant), and the hardship has to be more than just the emotional hardship of being separated. You will likely need to submit quite a bit of evidence in order to prove the extreme hardship requirement of the waiver application

How Much is The Filing Fee for a Provisional Waiver?

Currently, the filing fee for the provisional waiver is $630.00, payable by money order, personal check, or cashier’s check. If you are younger than 79, biometric services (such as fingerprinting) are also required, with a fee of $85.00. You will need to visit an Application Support Center (ASC) to have your fingerprints taken, and USCIS will send you an appointment notice once the biometric fee has been paid.

To actually file your application, you will need to fill out Form I-601A, the Application for Provisional Unlawful Presence Waiver, and mail it to the appropriate address along with your supporting documentation.

Do I Need a Lawyer to File a Green Card Provisional Waiver?

There are plenty of people out there who seek to take advantage of people navigating the United States immigration system. Many will offer to fill out your paperwork for you. If you are uncertain about anything in the process, it is best to seek out a professional.

If you are considering filing the provisional waiver, it is in your best interests to consult a  qualified immigration lawyer to help you navigate the United States immigration system. They can assess the situation and help determine whether you are likely to be granted a provisional waiver.

Additionally, a lawyer can review your application to help ensure that you are not removed from the country. U.S. Immigration Law is complex and nuanced, and a reliable attorney is best suited to guide you through the process so that you can achieve the best possible outcome for your circumstances.