A PROVISIONAL waiver can benefit certain people who are not eligible to adjust status in the U.S. These people include:
• Crewmen without the benefit of section 245(i), which was a law that expired on April 30, 2001, allowing crewmen and others to still adjust status in the US if they were petitioned before that date.
• People who entered on fiancée visas (K-1) but did not marry the American who petitioned them.
• People who are out of status, and do not have the benefit of Section 245(i).
• People who entered the U.S. without inspection and do not have the benefit of Section 245(i).
Since these people are not eligible to adjust status in the U.S., they would be required to return to their home country and apply for an immigrant visa abroad. However, there is a different immigration law which provides that if a person is out of status for more than one year and departs the U.S., even to obtain their immigrant visa abroad, they could be subject to a 10 year bar.
The provisional waiver forgives or “waives” the 10 year bar, and can be applied for while the person is still in the U.S., and before they depart, provided that:
• They have an immigrant visa immediately available to them, whether through a family petition or employer sponsorship. That means the priority date on their case must be current. (Of course, if they are being petitioned by a U.S. citizen spouse or child, the visa would always be available.)
• They demonstrate that a parent or spouse who is a U.S. citizen or lawful permanent resident would suffer “extreme hardship” if the provisional waiver is not granted.
• The only immigration violation they have is overstaying. If they have any fraud, misrepresentation, crimes, etc., they may not be eligible for the provisional waiver.
Despite the availability of this remedy, many people are still reluctant to avail of provisional waiver because of President Trump’s election and his promise to deport undocumented immigrants. However, I believe Pres. Trump would be in favor of, and endorse, the provisional waiver.
If you recall, when Trump was first running for president, he stated that “We have at least 11 million people that came in illegally. They will go out. Some will come back, the best, through a process. They have to come back legally.” What Trump was describing was effectively the provisional waiver! So why would he oppose something that he had been endorsing from the outset: people will go out (to apply for immigrant visa processing), and then they will come back as lawful permanent residents. Moreover, they will be “the best” or “the good ones,” because eligibility for the provisional waiver is based on a person having no crimes or fraud. The sole violation is overstaying. Moreover, they must go through a background check in the US, including fingerprints, as part of the approval process for the provisional waiver.
Moreover, the provisional waiver regulations provide for “confidentiality” even if the provisional waiver is withdrawn or denied (provided the person is not an enforcement priority, such as a terrorist, gang member, or criminal.) This means, the government has stated it will not come after people even if the provisional waiver is denied.
If you are eligible for a provisional waiver, and were reluctant to apply out of fear that Trump was against the provisional waiver, you can see that Trump, in his own words, favors or endorses the provisional waiver. If you think you may be eligible, you should seek the advice of an attorney who can fully evaluate your situation and perhaps help you apply for a provisional waiver.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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