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This week I want to take some time away from the Deferred Action for Childhood Arrivals Program (DACA) and switch back to the topic of the anticipated I-601 stateside provisional waiver procedures. Provisional waivers for unlawful presence was introduced under rulemaking proposed by USCIS on March 30, 2012. (The Rulemaking is not final as yet) Under the new rules, certain immediate relatives of U.S. Citizens may apply for a waiver of the unlawful ground of inadmissibility from the United States, if they can demonstrate that their removal would cause extreme hardship to a U.S citizen spouse or parent. This new rule can have profound implications to many immigrants with unlawful presence who are the spouse or adult child of a US Citizen. Although the I-601 waiver application is currently available to those with unlawful presence, you must leave the country for the immigrant visa process, forcing you to remain in your home country for six months to a year or more while the waiver is being processed. If granted a provisional waiver here in the United States, you still have to return to your home country to process your immigrant visa, but the time spent away from your family in the Unites States would be significantly lower. Most importantly, you would know if your waiver was granted before you leave the country – significantly improving your chances of being granted a visa (assuming you do not have any other grounds of inadmissibility.)

While the provisional waiver can make your life easier by allowing you to remain with your relatives in the United States, it does not change the existing standards for unlawful presence and extreme hardship. Extreme hardship is a threshold issue, and must be thoroughly documented. It is not enough that you would be sad or depressed if forced to be separated from your family. The standards are tough, and are defined mostly in the case law, decisions of Bureau of Immigration Appeals and Administrative Appeals Office. It is important you find an attorney who is familiar with the current state of the law regarding extreme hardship, and who has experience in documenting the hardship to the satisfaction of the adjudicator.

In order to apply for a provisional waiver, you must have an approved I-130 petition. You must be physically present in the United States and at least 17 years old. You must be actively pursuing an immigrant visa, and have paid the Department of State Immigration Processing Fees. You cannot be subject to any other grounds of inadmissibility, and must demonstrate that the refusal of your immigrant visa would result in extreme hardship to a United States spouse or parent.

If you require an waiver for the inadmissibility ground of unlawful presence, you should consult with a lawyer to see if you qualify for the provisional waiver, and can demonstrate a sufficient hardship to your U.S.C relatives. If you are a good candidate for a successful waiver, you might want to begin the process now by having an I-130 filed on your behalf. There are risks, however, in that the Provisional waiver program is not yet in effect, and there is no guarantee the rulemaking will pass. But if you are willing to take the risk that you might have to process your I-601 in your home country, then you might want to consider beginning the immigrant visa process.

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