Does Getting a Provisional Waiver Mean My Immigrant Visa Will for Sure Be Granted?

How much (or little) certainty one gains by applying for a provisional waiver of unlawful presence before leaving the U.S. for one's consular interview.

Question

I am married to a U.S. citizen, but I entered the United States illegally. I have delayed in submitting any paperwork to obtain an immigrant visa, because I was worried about getting stuck in my home country away from my husband and children. Lawyers told me I would have a time bar of ten years.

I recently learned about the provisional waiver of unlawful presence. If I am approved for this stateside waiver, does this mean that I can definitely get my green card after I leave the United States? Or is there still a possibility I'll be trapped, away from my family.

Answer

Nothing is for sure, but the provisional waiver may make the process a lot easier for you. (For its legal basis, see Immigration and Nationality Act § 212 (a)(9)(B).)

Keep in mind that the provisional waiver of unlawful presence (which became available in 2013), is not a grant of legal status in the U.S. or an immigrant visa (green card). You will still need to leave the U.S. to interview at a U.S. embassy or consulate to have your immigrant visa approved, at which time you could be denied for any of a number of reasons; many people are found inadmissible as likely public charges or because they have a crime on record, for example.

If you are granted a provisional waiver, however, what it WILL do is give you reassurance before you leave the U.S. that your unlawful presence will in all likelihood not be used as a ground for denial of your immigrant visa. It will also save you time: If you pass your interview and are approved for your green card, you will likely only need to stay outside the U.S. for a few weeks.

And at least you will have gotten over the biggest hurdle by obtaining a provisional waiver before you leave the United States. After all, in order to receive the stateside waiver—which is completely discretionary, meaning that the USCIS's decision whether to grant or deny it can be made on subjective grounds—you must have shown that your U.S. family members will otherwise experience “extreme hardship.” This can be a tricky proposition, and might require the help of an immigration attorney.

To learn more about the provisional waiver, see Who is Eligible for Provisional Waiver of the Three- or Ten-Year Time Bar.

Even after the provisional waiver is granted by USCIS, however, the U.S. embassy or consulate could deny your immigrant visa and green card for reasons other than your unlawful presence.

The most likely problem would be that you are inadmissible on other grounds, such as past criminal convictions or a communicable disease that was discovered after you took your medical exam (which is done in your home country). In such a case, unless you qualify and apply for an additional waiver, your immigrant visa will be denied. For more on this, see Inadmissibility: When the U.S. Can Keep You Out. If you are suspected of marriage fraud or if your marriage fails before you receive your immigrant visa, your visa will also be denied.

There's one more decision-maker in the process, too: After the consulate has approved you for U.S. residence, you could run into issues at the border. U.S. border officials will review your visa documentation, and they have the final say as to whether to admit you to the United States.

If you think that any of the above issues might cause problems for you, consult an experienced attorney before filing any immigration paperwork.

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