Is it true the provisional waiver can help me get a green card?

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Question:

I’m an undocumented immigrant who has been living in the U.S. for several years. I visited an immigration consultant recently and he told me that something called the "provisional waiver" will allow me to get a green card. Is this true?

Answer:

The most important thing to remember about the provisional waiver of unlawful presence is that it is a procedural benefit and NOT comprehensive immigration reform. This waiver doesn’t guarantee you a green card or offer any other immigration benefits like a work permit or amnesty for the time you spent in the U.S. illegally.

In fact, if U.S. Citizenship and Immigration Services (USCIS) finds that you are eligible for the provisional waiver, you will need to travel back to your home country to interview for an immigrant visa at a U.S. embassy or consulate —where your green card may still be denied for a number of other unrelated reasons.

What the “stateside” waiver DOES do is provide an extra bit of reassurance to certain relatives of U.S. citizens (spouse, parent, or child of any age, whether married or not) and certain relatives of lawful permanent residents (spouse or unmarried child of any age) who, because of their family relationship, already met basic eligibility criteria for a green card, but who might have otherwise had an impossible time getting it.

These are people who, because they don’t meet the eligibility criteria to submit an “adjustment of status” application in the U.S., must apply for their green card in their home country, through “consular processing.” But as soon as they leave the U.S. for the consular interview at which their green card could be granted, they face a three- or ten-year bar on returning to the U.S. because of their unlawful presence of 180 days or more. 

Provisional waiver applicants get a “yes” or “no” answer from USCIS as to whether their unlawful presence will be used as a ground to block them from receiving their green card BEFORE they decide to leave the United States. As a result, approved waiver applicants can travel abroad knowing that they will be separated from their U.S. family members for only about a few weeks instead of many months or (if their waiver were denied while they are overseas) years. For more information about who qualifies for the stateside waiver, see “Who Is Eligible for Provisional Waiver of Three- and Ten-Year Time Bar.”

If you have family members in the U.S. through whom you qualify for a green card, but you aren’t eligible to adjust status here (most likely because you entered the U.S. illegally); and if you believe you might be eligible for a provisional waiver of unlawful presence in order to safely leave the U.S. and obtain that green card, you should consult an experienced immigration attorney for help. The attorney can submit a complete, accurate, and convincing waiver application on your behalf using Form I-601A.

However, be very cautious about the possibilty of dealing with unscrupulous immigration consultants (also known as “notarios” in the Spanish-speaking community). Many times these non-lawyers will make false promises about their ability to get you a green card or work permit, taking your money and leaving you in a worse situation than before you submitted your personal information to USCIS. Make sure you do your research before paying anyone to handle your immigration matter! 

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