Provisional Waiver Still A Viable Solution

August 10, 2017



The Trump Administration has in no uncertain terms indicated that it wishes to combat illegal immigration by removing as many individuals unlawfully residing in the United States as possible.  The immigration courts recently released information confirming that the rate of removal orders, voluntary departures, and final decisions for the first six months of the Trump Administration has indeed increased rather dramatically.


Between February 1, 2017 to July 31, 2017, the total orders of removal has increased by 27.8% over the same time period as 2016 to 49,983 individuals.  As well, the total orders of removal and voluntary departures has increased by 30.9% to 57,069 individuals.  The total number of final decisions has also increased by 14.5%, affecting a total number of 73,127 people.


Given this concerted effort to remove unlawful individuals from the US, it may likely wise for individuals who have any means toward seeking legalization to do so.  One such possible path is the provisional waiver program that was implemented by former President Obama.  The provisional waiver program streamlines the waiver application process so that the separation of family members is minimized.


Individuals who can benefit from the provisional waiver program are those who are eligible for permanent residency, such as through a family member or job, but are not eligible for adjustment of status.  Individuals in this situation are primarily those who entered the US without inspection, as a C-1 crewman, D-1 in transit, fiancé who did not marry the petitioning fiancé, or someone who can no longer prove how they lawfully entered the US.  In addition, individuals who are unable to adjust status in the US are those whose green card application is based on a family-based petition in one of the preference categories or an employment-based petition; is in the United States unlawfully; and is not grandfathered under former INA §245(i).


Individuals who are not eligible for adjustment of status can only apply for permanent residency by leaving the US and processing through the US Embassy overseas.  The problem, however, is that most individuals will trigger a 3 or 10 year bar once they leave the US.  Individuals who leave the US after having been unlawfully present in the US for more than180 days are subject to a 3 year bar.  Individuals who leave the US after having been unlawfully present in the US for more than 1 year are subject to a 10 year bar.


The only way for an individual to obtain an immigrant visa and return to the US before the 3 or 10 years elapses is by being granted a waiver of inadmissibility for the unlawful presence.  To be eligible to apply for an unlawful presence waiver, an individual must have either a US citizen or lawful permanent resident spouse or parent.  Unfortunately, a child does not qualify.  To be granted, an individual must prove that the US citizen or permanent resident spouse or parent would suffer extreme hardship if the individual were not allowed to return to the US before the applicable 3 or 10 years. 


Under the provisional waiver program, individuals are allowed to apply for an unlawful presence waiver before leaving the US, thereby eliminating risk since they will know if the waiver is granted or denied.  Only after the waiver is approved would the individual leave the US and go to the US Embassy for processing of the immigrant visa.  The reported average time that an individual is outside the US to process the immigrant visa is just 2 weeks.


Given the complexities of the waiver process, it is vital that individuals seek fully capable and knowledgeable legal counsel.  The provisional waiver program may be the solution to individuals who have been in limbo in finally finding peace and prosperity.​


For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists. Please also connect with us on Facebook and Twitter.  Aquino & Loew also handles family law and criminal matters.  Providing Personalized Service Nationwide & Abroad Since 1996.