More Certainty for Green Card Applicants – Provisional Waivers

January 3, 2013

Yesterday, the Department of Homeland Security (DHS) announced that it published a new rule allowing certain applicants for green cards to file for a waiver of their eligibility for admission in the United States instead of at a U.S. Consulate abroad. While this may sound like a small administrative change, this new process is aimed at alleviating much of the hardship that families face when applying for a green card. That is much welcomed news for spouses and children of U.S. citizens who qualify for this new process and their families. Previously, if individuals were unlawfully present in the U.S. for more than 6 months, they were forced to have an eligibility review outside the U.S. before a green card was issued. If the waiver request was denied, they were barred from reentry to the United States. Now, instead of filing the waiver and supporting documentation in person at a U.S. Consulate abroad, and then waiting several months for an answer, certain applicants can now apply in the U.S. and obtain an approval of the waiver before departing the U.S. for their consular interviews. Thus, instead of departing the U.S. with no certainty of return and then waiting months for an immigrant visa, the DHS has advised that applicants should spend no longer than two weeks abroad.

In order to qualify for the provisional waiver program, the applicant must be a spouse or child of a U.S. citizen, be inadmissible only because of unlawful presence, and demonstrate the U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is not allowed to return to the U.S. as a lawful permanent resident.

The current process will remain available for those who do not qualify for the new provisional waiver process. This group includes spouses of lawful permanent residents and individuals who need waivers for criminal or fraud issues.

The new process becomes available to eligible individuals on March 4, 2013. Prior to filing the Waiver of Inadmissibility (I-601A), individuals must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. They must also pay visa processing fees prior to filing the I-601A.

While this process offers new hope to many families, people must use caution before applying for the I-601A due to certain potential negative legal consequences. Waiver filings typically consist of complicated legal arguments about eligibility for admission to the U.S. Individuals who apply for a provisional waiver, which is subsequently denied, may be placed in removal proceedings in certain situations. Thus, individuals should only rely on the legal advice of an experienced immigration attorney and avoid information provided by notarios.

For more information about the Provisional Waiver, or any of the other changes in Immigration law, or for any other immigration matter, please contact Grzeca Law Group at (414) 342-3000 or visit our website at


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