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Legal Lines: provisional waiver to the green card process

By Sara Crocker
Special to The SUN

Question: How does the new waiver process change how to get a green card through marriage to a U.S. citizen?

Answer: As a general principle, a U.S. citizen can file a petition for his or her noncitizen spouse as the first step toward seeking lawful permanent resident, or “green card,” status for a noncitizen spouse.  However, the noncitizen spouse is usually only eligible to apply for the green card from within the United States if he or she entered the country with a visa.  This means that for most people who entered the U.S. illegally, they are required to leave the U.S. in order to apply for their green card at a consulate abroad.

Inadmissibility: The problem for those seeking green cards through consular processing is that as soon as they leave the U.S. to attend an immigrant visa appointment at the consulate, many trigger grounds of inadmissibility that prevent their immigrant visas from being approved. Those who have spent six months to a year of unlawful presence in the U.S. will trigger a three-year ground of inadmissibility with their exit from the U.S.  Those who have accrued more than one year of unlawful presence in the U.S. trigger a 10-year ground of inadmissibility with their exit from the country. The noncitizen spouse of the U.S. citizen will thus be barred from returning to the U.S. for either three or 10 years, unless granted a waiver of inadmissibility.

Waivers of Inadmissibility:  Both the three- and the 10-year bars can be waived if the applicant can prove that his or her absence from the U.S. is causing “extreme hardship” to the spouse or parents of the applicant. Traditionally, applicants can expect to spend up to 18 months outside the U.S. before receiving a decision on their waiver applications.

The provisional waiver:  Since March 4, the Department of Homeland Security began accepting applications for provisional waivers. The new process is aimed at shortening the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas.  Basically, for those who qualify, the provisional waiver allows an applicant to apply for the waiver before leaving the U.S. to attend the immigrant visa interview at the consulate abroad.

This allows the applicant to stay in the U.S. while the waiver application is processed. The provisional waiver does not change who is eligible for waivers of inadmissibility — it only changes the process for certain people who were already eligible for certain waivers of inadmissibility.

To be eligible for the provisional waiver, the applicant must:

• be over 17 years of age;

• be the spouse, child or parent of a U.S. citizen;

• have an approved immigrant visa petition;

• have paid the required Department of State immigrant visa processing fee;

• be able to demonstrate that a denial would cause extreme hardship to the U.S. citizen spouse or parent;

• be physically present in the U.S. to file the application for a provisional unlawful presence waiver and provide biometrics;

• not have been scheduled for an immigrant visa interview by DOS before Jan. 3; and

• meet all other requirements for the provisional unlawful presence waiver as detailed in 8 CFR§ 212.7(a) and the Form I-601A and its instructions.

The provisional waiver will not waive any ground of inadmissibility other than the three- and 10-year unlawful presence bars and will therefore not be effective for those who will require waivers for past immigration fraud or inadmissibility caused by criminal convictions.

Detailed information about the provisional waivers is available at USCIS.gov.

The Colorado Bar Association welcomes your questions on subjects of general interest. This column is meant to be used as general information. Consult your own attorney for specifics. Send questions to the CBA attn: Sara Crocker, 1900 Grant St., Suite 900, Denver, CO 80203 or email scrocker@cobar.org.

Legal Lines is a question and answer column provided as a public service by the Colorado Bar Association. Attorneys answer questions of interest to members of the public for their general information.

This story was posted on May 2, 2013.