Nearing the lightToday we’ll look at the provisional waiver program (the so called “Form I-601A”) and how it fares on its second anniversary.

What is the provisional waiver?

The provisional waiver is an alternative to the waiver for unlawful presence that an immigrant normally requests after an interview at a U.S. consulate (i.e. in another country.) It’s designed to partially relieve the month-long separations and anxiety a family suffers when requesting waivers for unlawful presence.

You see, prior to the provisional waiver, an immigrant would first have to appear for the immigrant visa interview at the consulate and be instructed to file a waiver for the 10-year bar for unlawful presence. The immigrant would then wait outside of the U.S. anywhere from six to 12 months until the waiver was granted. If the waiver was denied, the immigrant could either appeal–ensuring at least another 18 months wait–or file a new waiver and hope for a more compassionate USCIS adjudicator.

And so it was fairly usual for spouses and children of U.S. citizens to be separated from their families for years just to get permanent residency. These lengthy separations often led to divorces, financial ruin, and worse. It wasn’t surprising, then, that many immigrants chose to forego permanent residency and remain in an undocumented status, but with their families.

Who can use the provisional waiver?

As of today, only immigrants who are present in the U.S. and are the spouses and children of U.S. citizens may use the provisional waiver. It only waives the 10-year bar for unlawful presence and may not be used in combination with any other waiver. Also, the provisional waiver not be used if the immigrant is subject to any other grounds of inadmissibility. For example, if the immigrant also needs a waiver for having committed what we call a “crime involving moral turpitude” (thefts, anything involving fraud, etc.), then the immigrant can’t use the provisional waiver. Instead, the immigrant must appear for the interview and file a waiver covering both, the 10-year bar, and the crime of moral turpitude.

Soon, however, immigrants in any visa category will be able to use the provisional waiver. USCIS is currently drafting implementing regulations to expand the pool of eligible applicants. If history repeats itself, we may see the expanded provisional waiver implemented in late 2015.

Our experience with these waivers two years later.

We’ve enjoyed a mostly positive experience with the provisional waivers. There are two continuing issues that USCIS must continue to address to ensure the unequivocal success of the provisional waiver: the meaning of “extreme hardship”, and officer training on all the grounds of inadmissibility.

For a waiver to be granted, the immigrant must convince the adjudicating officer that the waiver denial would cause “extreme hardship” to the immigrant’s spouse or parents. “Extreme hardship” is a term that has been extensively litigated and written about. Yet, a universally understood and verifiable interpretation remains elusive. Our experience is that, like “beauty”, “extreme hardship” is in the eye of the beholder: everyone knows what it is, but everyone’s interpretation is different. Not surprisingly, the more seasoned USCIS officers–those who often witness the debris of our broken immigration system–are more likely to see “extreme hardship” than newer, more naive officers.

A relatively simple solution to this problem would be to emulate the rule that USCIS implemented to adjudicate similar “extreme hardship” waivers in Section 203 NACARA cases in the late 1990s: create a presumption of hardship based on quantifiable criteria. If the qualifying relative has X years of steady employment, Y number of children, and has been living in the U.S. for more than Z years, then there’s a presumption that there will be “extreme hardship” if the waiver is denied.

The other problem is a training and supervision issue. The adjudicating officer must deny a provisional waiver if he or she has “reason to believe” that the immigrant is subject to other grounds of inadmissibility besides the 10-year bar for unlawful presence. We have seen many of those “reason to believe” denials based on insignificant traffic-related arrests or border apprehensions that more experienced officers wouldn’t hesitate to approve. These denials based in on a basic misapplication of the law point to a lack of training, together with lack of quality control and supervision. USCIS should promptly address both issues.

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