Can Provisional Waiver Help Undocumented Person Get an Employment-Based Green Card?

How 2016 changes to the provisional waiver process offer hope to people in all visa eligibility categories.

Question

I am in the U.S. without documents, after having crossed the border illegally from Mexico. I actually have advanced technical skills and speak excellent English, and many employers in the U.S. would like to hire me. But the lawyers they consult say that the combination of my illegal entry and years of unlawful presence in the U.S. make it impossible. They said that, even if I got far enough along in the green card application process to have an interview, it would be held at a U.S consulate in my own country, and I would then not be allowed back into the U.S. for ten years as a penalty for my unlawful U.S. presence.

I don't have any family members who could help me get a green card anytime soon—I married a refugee, who will qualify for a green card in a month.

But I recently heard rumors that something called the provisional waiver would help me with applying for a green card based on a job. Is that true?

Answer

Due to 2016 changes made to the provisional (sometimes called “stateside”) waiver, it's true that people applying for U.S. lawful permanent residence (a green card) on the basis of employment (or any other basis) can make use of the provisional waiver process.

It's a very useful process, allowing applicants to ask U.S. Citizenship and Immigration Services (USCIS) to consider and “waive” their unlawful U.S. presence before they leave the U.S. for their visa interview at a U.S. consulate, thus providing a high degree of assurance that the consulate won't tell them the immigrant visa is being denied for those ten years you mentioned. (Note, however, that the consulate could still find the applicant inadmissible to the U.S. for some other reason.)

But you still face several possible hurdles. The first is that even employment-based visas can be hard to get within a reasonable length of time—high demand leads to waiting lists. For more information, see Will Finding a Job in the U.S. Get You a Green Card?.

The second, perhaps more difficult hurdle for you and other undocumented applicants is that, to be eligible for the waiver, you must show that your being denied visa would cause your U.S. citizen or lawful permanent resident spouse or parent to suffer extreme hardship. By your description, you do not have one of these “qualifying relatives”--though it does sound as though you soon may, through your spouse.

Your spouse may also want to separately file for a green card on your behalf. As the spouse of a permanent resident, you again face a wait of many years for an immigrant visa to become available to you (due to annual limits on how many are given out). There's nothing to stop you from having two separate types of applications going at once, however, to see which ultimately proceeds faster.

With so many complicating factors in your case—but also a real hope that you could eventually become a U.S. lawful permanent resident—it's definitely worth it for you to consult an experienced immigration attorney.

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