The provisional waiver is a way in which to ask for “forgiveness” from the government if you are inadmissible.  Inadmissibility can be caused by many things, such as criminal history or derogatory immigration history. The most common inadmissibility grounds involve illegal entries and illegal presence in the United States.  If you have been in the United States without status for six months, you can be subject to a three year bar. If you have been present in the United States without status for more than one year, you are subject to a ten year bar.  This means that if you apply for a green card, you would be required to spend three or ten years out of the country before you can come back and have a green card.

Luckily, the provisional waiver acts as a way to avoid these bars when you apply for a legal status as the spouse or child of a citizen or legal permanent resident.  If you are granted a provisional waiver, you can surpass the three or ten year bar and stay with your family.

To receive a provisional waiver, the applicant must establish that the imposition of the three or ten year bar would result in “extreme hardship” to the US citizen/permanent resident spouse or child.  “Extreme hardship” is not defined in the Immigration and Nationality Act (INA) or the regulations. But, to be an exceptional hardship, it must go beyond that which is expected and associated with deportation.

U.S. Citizenship and Immigration Services (USCIS) officers are required to consider the totality of the circumstances to determine if there is an extreme hardship.  There are several office officers must consider in determining whether there is an extreme hardship that involve:

• Country conditions in the applicant’s home country.
• Health and disability problems for the spouse or child.
• The economic impact the bar would impose.
• The qualifying relative’s social and family ties that would be affected by possibly living in the applicant’s home country or separation from the applicant.

There are a few factors that USCIS weighs especially heavily.  For example, USCIS especially considers whether the qualifying relative has a disability, and whether that disability could be treated in the applicant’s home country.  Evidence of the disability weighs heavily in the officer’s determination.

Additionally, USCIS weighs any Department of State travel warnings related to the applicant’s home country.  The Department of State will advise United States citizens from traveling to certain countries due to dangerous conditions.  If the qualifying relative would move with the applicant to the home country, the officer is required to strongly consider this evidence. If they would be seperated, the officer must consider how the separation would impact the qualifying relative.

USCIS also heavily considers whether the imposition of the bar would result in major burden shifting with respect to the care of children, even if the children are not citizens.  USCIS looks at whether the applicant is a primary caregiver, such that the qualifying relative would need to assume caregiving duties. Likewise, USCIS looks at whether the qualifying relative is the primary caregiver and whether fulfilling that role in a new country would be difficult.  When the applicant is primary economic source for the family, that person’s removal could cause a sufficiently difficult hardship to the remaining family members. In cases where the hardship is based on some type of shift in child rearing duties, USCIS will request evidence of a bona fide relationship to the children through affidavits, medical records, school records, and other such evidence.

Finally, USCIS strongly considers if the qualifying relative is in the military, and if the military service could be impacted or whether the qualifying relative’s anxiety or stress would be exacerbated without the applicant.

Tips if you are applying for a provisional waiver

• Remember that the hardship must be exceptional–it cannot just be the usual circumstances associated with removal.
• BUT, you may have an exceptional hardship without knowing! Ordinary circumstances, like having to shift the burden of taking care of children due to the removal, can sometimes suffice. Working with an attorney, like those at our office, who can spot possible hardships is key.
• The more evidence, the better! Be sure to have tax returns, medical records, and declarations from friends and family.
• Make your hardship clear and compelling. Do not make the officer guess why there is a hardship. Tug at the officer’s sympathies. Certain things like declarations from small children or  heartfelt statements from spouses could do that.

How we can help

Our office believes that every story matters. The application for the provisional waiver is a way for you to tell your story. We always work closely with our clients to hear their stories and present them in a way that will be impactful to immigration officers.  Call our office at (213) 375-4084 to see if a waiver would solve your immigration problems.