Frequently Asked Questions About the Provisional Waiver of Unlawful Presence in the U.S.

Learn from others' questions about the practical reasons to apply for a provisional waiver, whose hardship counts toward approval, and more.

The so-called provisional waiver of unlawful presence allows non-citizens living in the U.S. the opportunity to ask for a waiver (legal forgiveness) of their time spent in the U.S. illegally, which is a ground of inadmissibility. Better yet, unlike in the past, it allows them to make this request from within the U.S., thus reducing the risk that when they leave for the consular interview at which their green card could be approved, they won't face a bar on returning. (See .)

But this waiver is a source of confusion as well as opportunity. Learn from others' questions about the practical reasons to apply for a provisional waiver, who qualifies, and more.

Question: Is it true that we can’t claim extreme hardship to our children for the provisional waiver?

I’m a U.S. citizen, married to a man from El Salvador who’s been here for the last eight years. Because he entered the U.S. illegally, attorneys tell us he's not eligible to adjust status in the U.S., and would have to go to the U.S. consulate in El Salvador to apply for his green card—where they might not let him come back for ten years.

But now we’ve heard that the provisional waiver might let us apply in advance for him to be allowed straight back into the U.S. with his green card, if he can prove extreme hardship to his U.S. spouse or parents. That’s very exciting; but his only U.S. citizen relatives are me and our two children. I will suffer if my husband is denied the right to stay in the U.S., but what woman wouldn't? It’s our kids who would really suffer. I work full-time, but my husband works only part-time, and always spends afternoons with them. Plus, our younger child is mentally disabled, and my husband communicates with him better than anyone.

I can’t believe I’m reading the accounts of this waiver right; is it true that the hardship my children would suffer doesn’t count here?

Answer: Yes, but look for indirect impacts on the qualifying relative

In literal terms, you are reading things correctly. To succeed in an application for a provisional waiver of unlawful presence, one must prove that denial of the immigrant visa (green card) would cause extreme hardship to U.S. qualifying relatives, namely a U.S. citizen spouse or parents. Showing extreme hardship that children would directly suffer if your husband is denied the waiver and green card will not help.

But that doesn’t mean your children are out of the picture. Their situation can be factored into the waiver application indirectly, in its impact on you. For example, what about the added hours that you might have to take on at work in order to pay an afternoon caregiver if your husband were to leave the U.S. but you and the children stay behind?

Or the work hours you would have to drop in order to stay at home and care for the kids? Or what about the mental anguish you'd suffer watching your children’s grief at being separated from their father? (If you have or will talk to a counselor or therapist about this, a statement from that professional will help bolster the waiver application.)

Talking to an experienced immigration attorney—one who has handled this type of waiver before—would be an excellent idea, to help you develop more evidence of the extreme hardship you might suffer, and to help prepare a convincing waiver application and other documents. These waiver applications are commonly thick—a good lawyer will draw out all elements of your story, so that the immigration officials are actually touched by the human side of your situation.

Question: Does the qualifying relative need to be the U.S. petitioner for provisional waiver purposes?

I’m a U.S. citizen, married to a woman from Guatemala. Her mother is a U.S. citizen, having received asylum; but is in poor health and not working. It makes more sense for me to file the visa petition for my wife. But since my wife entered the U.S. illegally, and has been here for at least six years, we are going to need a provisional waiver. We’re confused, however, by the waiver requirement that she prove hardship to her U.S. citizen relatives.

I will be unhappy if she (and maybe me) must move to Guatemala, but I’m not sure we can prove extreme hardship to me. My wife is the primary caretaker for her mother, who needs daily injections and so forth. Can we base the waiver on that hardship even though I’m filing the visa petition?

Answer: No, you can prove hardship to a different relative than the one filing the I-130 visa petition

An applicant can obtain a provisional waiver of unlawful presence by showing extreme hardship to a qualifying U.S. spouse or parent who is NOT the visa petitioner in the case.

You would want to prove both the extreme hardship that your mother-in-law would experience if your wife were to be denied the green card and move back to Guatemala AND the extreme hardship that she’d face if, upon the denial, she moved to Guatemala with your wife. In either case, think about the detriment to her health and mental state, her financial inability to bring in outside help, and so on.

Don’t count yourself out of the equation altogether, however. It might be worth trying to show hardship to you as well as to your mother-in-law. For instance, is there a possibility that your wife would leave the U.S. but you would stay here and assume part of the care of your mother-in-law? That could certainly constitute a hardship for you. Or, if you moved to Guatemala, what significant community activities, networking opportunities, and so forth might you miss out on? Does your family have any genetic predispositions that could actually result in your developing health problems or receiving inadequate treatment in Guatemala?

Consulting with an immigration attorney might help you fully think through the various hardships that both your wife’s U.S. citizen mother and you would face if she were denied the provisional waiver.

Question: For provisional waiver, do we show the hardship if the whole family were to leave the U.S., or just hardship to the immigrant?

I’m a U.S. citizen, married to an undocumented person from Nicaragua. Because she crossed the U.S. border illegally, we’ve been told that we can’t file for her green card through adjustment of status, so she’ll need to apply through a U.S. consulate, and get a provisional waiver of her unlawful presence before leaving.

She will be trying to prove hardship to me (her U.S. qualifying relative) if the waiver were denied. But I’m confused: Should we be talking about how terrible it would be for me to stay in the U.S. and take care of our small child by myself if she were refused a U.S. green card, or how difficult it would be for me if I quit my job and we all moved to her small village in Nicaragua?

Answer: You can show hardship based on different scenarios

The short answer to your question is, “Both.” In order to apply for a waiver of unlawful presence (provisional or not), you can and should present alternate scenarios.

Fully develop your account of what it would be like to stay in the U.S. without your wife, while taking care of your child. Would you face financial hardship because of having to hire childcare while you work? Would you put your livelihood at risk because you’d want to make regular trips to Nicaragua? Does your child have any special medical, emotional, or academic needs that would make your task harder? (As you seem to understand, hardship to your child has, in legal terms, no direct bearing on this application—but it can have an indirect one, as you bear the brunt of dealing with the hardship that your child experiences as the result of its mother being absent.)

Then consider what it would be like for your family to pick up and move to Nicaragua in order to stay together. Where would you live? Is it safe, hygienic, or remotely similar to the life you are accustomed to? Do you yourself have any medical issues that would be inadequately treated there? Does your child have any such issues, thus causing you mental anguish as you deal with them? Do you speak Spanish?

The more you can think about your vulnerabilities and how they would be exacerbated by each of the scenarios you’ve described—and then document it with things like newspaper reports about the region of the country where you’ll be living, photos of your house in the U.S. and the place you’d likely live in Nicaragua, pharmacy records (if anyone is having to take anti-anxiety or antidepressant medications), doctors’ reports, affidavits and letters from teachers, counselors, friends, and more—the more likely you’ll be to succeed with a waiver application. (Also, it sounds like this isn’t under consideration, but if your child might accompany your wife to Nicaragua, that might also be another scenario to explore.)

A lawyer can help you delve within your mind and your life circumstances to think of areas of potential hardship that you might not have otherwise thought to mention; and then present it as a cohesive account, with convincing documentation to back it up. See the Inadmissibility and Waivers section of Nolo’s website for more information on this interesting area of the law.

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