Clients have been asking questions about the Provisional Waiver process for so long that I thought writing this blog post would be the best response​.​ Immigration law is very complex. Some of the areas are very difficult and technical for a client or a lay person to understand. One of those areas is the Provisional Waiver. This blog post will also help explain why it becomes expensive. There has been a recent change in the Provisional Waiver area. I will address that too. To make it easy to understand I am attempting it in a question and answer format.

Question: What is Provisional Waiver

Answer: Provisional Waiver is a relief application to seek the Waiver (Pardoning) of previous immigration violation/s. This application is filed during the process of obtaining an Immigrant Visa to become an LPR (Legal Permanent Resident) or more commonly known to become a Green Card Holder.

Question: Who must file a Provisional Waiver

Answer: Someone who has obtained at least 6 months of Unlawful Presence in the United States, for example, who came to US illegally by crossing the border, or has stayed beyond their authorized period of stay (if entered on visa). A more comprehensive waiver is available for people with other immigration violations, such as someone who has committed certain crimes in the past or has committed immigration fraud by using wrong documents or information to get any Immigration benefit. There could be many other situations for which a waiver may be filed which are not listed here.

Question: What is the recent change in the Provisional Waiver

Answer: Originally, the only waiver available was the 601 waiver which was filed at the consulate abroad when you interviewed at the consulate for an Immigrant visa. The Consulate would check for issues which would make the person ineligible for admission to the United States. If there was such an issue, the Consulate then would require the person to file the 601 waiver, to formally ask for forgiveness or pardon for the problem. Otherwise, the Consulate would not be able to approve an Immigrant Visa.

Later, the law changed and forced people who had entered illegally to start the process in the United States but then travel back home to the consulate to receive their immigrant visa. This required travel triggers the waiver situation, where none had existed before the law changed. Often, the waiver would be denied even though the visa was otherwise approvable and the person​ ​would not able to return to the United States. With that fear in mind, many people stopped processing their immigrant visa cases even if they were married to a US citizen.

Seeing that situation, the law was again changed to accommodate those people and a provision was made for the relatives of the United States Citizens, whose only problem was unlawful presence, to file the waiver in the United States and know the decision before leaving the United States for the consulate interview. If the waiver was approved, they knew that they would not be trapped outside the United States. This came to be called the Provisional Waiver. The application and the process remained mostly same.

Now a recent change in the law has extended this benefit to the relatives of the LPRs (Legal Permanent Residents) too.

Question: Why it is expensive

Answer: Because this requires numerous hours of work of an Immigration attorney to prepare this waiver. The attorney needs to know and discuss the whole Immigration history of the client and the qualifying Citizen and LPR relatives to argue this waiver. The attorney must prove how the LPR or the Citizen relative suffer extreme hardship if the waiver is not granted.

I hope this helps. Should you have further questions about this waiver, please call our office and speak with one of our attorneys of the firm.