Relief for Family Members of U.S. Citizens and Permanent Residents
Prior to the Provisional Waiver, those ineligible for adjustment of status because of unlawful presence first had to leave the country, trigger a 10-year bar, and apply for a waiver at a consulate abroad, leading to a lengthy family separation with no guarantees that the relative could return.
Because of the risks involved—specifically the threat of separation from one’s family for a period of ten years—many did not take advantage of the waiver process. Hoping to streamline that process and curtail the time relatives spent apart from their U.S. based family, USCIS started allowing certain immediate relatives of citizens and legal residents to apply for a “provisional waiver” before departing the United States. In other words, those who qualified could depart the U.S. with their waiver already provisionally approved, decreasing the amount of time they would have to spend apart from their family.
The waivers is called provisional because final approval only happens at the Consulate interview, so pursuing this route still poses some risks. That is why it is important to conduct a complete assessment prior to intake and conclusion of the case to ascertain success.
To qualify for a provisional waiver, you must be able to show that your qualifying relative (a Citizen or Legal Permanent Resident spouse or parent) will suffer extreme hardship if you had to stay outside the U.S. for ten years.
Although not specifically defined in immigration statute, extreme hardship generally has to be harsher that what a typical family would experience during a period of long separation. Hardship to children does not, by itself, qualify you for a provisional waiver, but it may count toward the hardship to your spouse if they will be left caring for your children alone.