Before applying for provisional waiver, should I check my immigration record? How?

If an order of removal might be lurking in your immigration record, you need to find out about it.

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I came to the U.S. without documentation when I was 18 and later married a U.S. citizen. I have learned about the provisional waiver that will help me get a green card even though I was unlawfully present in the U.S., and I would like to apply. The thing that is holding me back is that I don’t know if the U.S. government has a record of me crossing the border without permission. When I came, I was detained by border patrol agents who took my name and then sent me back to Mexico the same day. The next day I crossed with no further issues. How can I be sure that this will not cause a problem in my provisional waiver application?


The provisional waiver program can grant you legal forgiveness for the time that you spent in the U.S. without permission, thus allowing you to go forward with your marriage-based green card application. However, the provisional waiver will likely not help you if you have previously been removed from the country.

Many potential applicants have had encounters with border patrol agents in the past but are not sure whether they have a record that will disqualify them from approval for a provisional waiver. Understanding whether you have been ordered removed can be confusing. Even if you were removed without a hearing or action by an immigration judge, you may have a removal order against you that was issued through a process known as “expedited removal."

Because your provisional waiver application could fail if you have a previous removal, it is essential to understand what's in your immigration record prior to sending the application. There are several ways to obtain this.

The best way to do so is by submitting a Freedom Of Information Act (FOIA) request to U.S. Citizenship and Immigration Services (USCIS) and to Customs and Border Protection (CBP), and to submit a fingerprint background check to the Federal Bureau of Investigation (FBI). If you entered the U.S. relatively recently, it is likely that one of these checks will reveal all of your records, but the best practice is to request records from each, just in case one agency has information that the others don’t.

It can take several months to complete this process. The wait will be worthwhile, as you will be able to use the information from your record to decide whether or not to apply for the provisional waiver, or whether you should wait until another avenue becomes available to you.

If you decide to get help from a lawyer with filing your provisional waiver application, the lawyer will definitely be interested in seeing these results, as well.

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