In most cases, a person must have some sort of legal status in order to apply for and obtain a green card in the U.S.  There are exceptions; however, for the majority of cases, if you are out of status, you won’t be able to get a green card while in the United States. Instead, if you were eligible for a green card (for example a company decided to sponsor you for a green card), you would have to go back to your country to get the green card at a U.S. consulate.

Unfortunately, in many cases, once you leave the U.S. to get this green card, you may be subject to harsh penalties for having been in the U.S. out of status: a 3-year bar from reentering if you were out of status more than 6 months, and a 10-year bar to reentering if you were out of status for more than one year.  As such, even if you had an approved green card petition, the consulate would not issue your green card and you would not be able to return without a waiver.

This blog post explains what a waiver is and some new rules that were recently finalized that provide more immigration relief in some circumstances.

What is a waiver?

A waiver is like a pardon in immigration law and forgives some past activity that would otherwise make an individual ineligible to enter the U.S. or ineligible for a visa or green card.  For example, someone who otherwise wouldn’t be able to enter the United States because of a violation (for example crossing the border without documentation, overstaying a visa, or having certain criminal convictions) could with a waiver enter the U.S. and obtain an immigration benefit.

Which waivers were available in the past and what has changed? What is the expanded provisional waiver? I heard about a new waiver, how can it help me?

The original provisional waiver, which was implemented in 2013, was a way for people living in the U.S. without status who were the spouses, parents, or children aged 17-20 of U.S. citizens and who had approved visa petitions to be able to go back to their country to obtain a green card at a U.S. consulate without being penalized for having been in the U.S. out of status.  The key here was that you could apply for the waiver in the U.S. and after it was approved, you would go to a consulate to get a green card.  Before this waiver, applicants had to leave the U.S. and go to a consulate and “hope” that the waiver would be approved. This of course created the significant risk that the waiver would not be approved and the applicant would be stuck outside of the country with a bar of 3 or 10 years.

With the changes in 2013 though, the 3 and 10 year bars were waived in the U.S. so that an applicant could get their waiver here, leave the country and then get their green cards and come back to the United States. In order to get this waiver, an applicant had to show that either their U.S. citizen spouse or parent (these two categories only) would suffer extreme hardship if they were separated.  You can find out more about this waiver by clicking here.  This provisional waiver was a great step forward, but in actuality, it only benefitted people who had crossed the border who also had U.S. citizen immediate family members who could petition for them (defined as spouses, parents, or children 21 or older by U.S. immigration). Many others were still left without a way to legalize their status.  This brings us to the recent changes in the law that expand immigration benefits for some.

On August 29, 2016, the Immigration Services will significantly expand the provisional waiver. Some of the major changes are as follows:

  • The expanded provisional waiver can be used for all immigrant petitions, including all family members of U.S. citizen as well as Legal Permanent Residents (including siblings and adult children), all employment based immigration petitions, diversity lottery selectees, and certain special immigrants.

For example, let’s say you have a U.S. citizen brother or sister who had submitted a petition for you in the past. Before the new law, you wouldn’t be able to get a green card through this petition if you were living in the U.S. without status. With the expanded provisional waiver, you might be able to get a green through this petition if you can show that not getting one would cause extreme hardship to either a U.S. citizen or Legal Permanent Resident spouse or parent. The hardship does not have to be related to the person that petitioned for you-even though you are qualifying for a green card through a brother or sister, you would still show hardship to the parent or spouse to be eligible for the waiver.

Alternatively, let’s say that you are a skilled worker and there is an employer who wants to sponsor you. With the provisional waiver, you might be able to get a green card so long as you can still show that you have a U.S. citizen or Legal Permanent Resident parent or spouse who would suffer hardship if the green card was not approved.

  • The waiver can now be approved based on extreme hardship to either U.S. citizen or Legal Permanent spouses or parents, not just U.S. citizens.
  • The provisional waiver is now also available to people with prior deportation orders (although another waiver will be needed for the deportation order).
  • The original provisional waiver was only available to people who did not have a visa interview scheduled prior to January 3, 2013; the expanded provisional waiver has removed this restriction.

It is very important to mention that the provisional waiver is only a pardon for being in the U.S. without status. There are other ways people can be found ineligible for a green card, and if another one of these reasons applies to you, the Consulate may deny your green card based on these other reasons, even though the provisional waiver was approved, and you will not be able to return to the United States.

The provisional waiver, especially once is it expanded on August 29th, 2016, will open up options for many people. However, it will not open up immigration options for everybody, so it is very important to consult with a knowledgeable attorney who can review your entire immigration history and then determine whether the expanded provisional waiver is an option for you.



