Discussion Points for Punto Legal- August 3, 2016

1. Provisional Waivers. We have some good news in the immigration world. The provisional waiver program has been expanded to include immigrants in all family-based categories.

First, some background information. Under U.S. immigration law, a person who has accrued one year or more of unlawful presence will trigger a 10-year bar to entry upon any departure from the U.S. (except departures with an advance travel document). Second, people who have an approved immigrant visa petition, but who are in the U.S. illegally, are ineligible to fix their papers in the U.S. (unless they are grandfathered). Instead, these people must leave the U.S. and apply for an immigrant visa at a U.S. embassy or consulate outside the U.S. In the case of people from Mexico, it is the U.S. consulate in Juarez. However, departure will trigger a 10-year bar to entry. Third, the 10-year bar may be waived, if the applicant can demonstrate that the refusal of his or her admission would cause "extreme hardship" to a U.S. citizen or LPR spouse or parent, but not a child.

Prior to 2013, when the provisional waiver process was rolled out, a person who departed the United States to apply for an immigrant visa at a U.S. embassy or consulate, and who was found inadmissible based on prior unlawful presence, could only apply for a waiver of inadmissibility after he or she had left the United States and had had their consular interview. In 2013, in recognition of the hardships that are imposed upon families during the lengthy separation that often accompanies the "regular" waiver process, the immigration service implemented a new "provisional" unlawful presence waiver. The provisional waiver process allows an applicant who knows he or she will be subject to the 10-year bar upon departure to apply for "provisional" approval of an unlawful presence waiver prior to departing the U.S. for the immigrant visa interview. Assuming there are no other eligibility or admissibility issues, an approved provisional waiver permits a consular officer to issue an immigrant visa without delay.

This program has been very successful. Thousands of immigrants, almost all spouses of citizens, have taken advantage of the program. The provisional waiver approval rate is about 75%. Then, for those who have traveled to Juarez, 98% have become residents.

Let's talk about some examples.

Hector entered the U.S. without inspection in 2004. He met and married Leticia who is a resident. Leticia wants to immigrate Hector. She files an I-130 Petition for Alien Relative. Hector has to go to the U.S. Consulate in Juarez to fix his papers. Before he goes to Juarez, he can file for the provisional or stateside waiver of his unlawful presence bar to entry, and know-before he goes-whether or not he got the waiver. Of course, if he does not get the waiver, he does not travel to Juarez.

Here is a second example. Jose Luis entered the U.S. on visa in 2005. He met and married Cinthya who is a resident. Cinthya can't speak enough English to pass the citizenship test. Thus, the entry on a visa is of no help to Jose Luis. He has to go to Juarez to fix his papers, but he has heard a lot of bad stories about people seeking waivers after they go to Juarez. But the provisional waiver solves his problem. He can obtain the waiver in the U.S. and will only have to spend 6-7 days in Juarez.

Sergio is 20 years old. Sergio's mother brought him to the U.S. illegally when he was five years old. His mother divorced Sergio's father and remarried a man named Daniel when Sergio was 16. Daniel is a resident and Sergio's step-father. Daniel files an I-130 Petition for Alien Relative for Sergio. Sergio will have to go to Juarez to fix his papers. But he can apply for the provisional waiver before he goes to Juarez. His waiver will be based on showing an extreme hardship to his step-father and his mother, if she has become a resident.

Graciela entered the U.S. without inspection in 1994. She had son, Wilfredo, born in the U.S. in 1995. He just turned 21, and filed an immigrant petition for his mother. Graciela has to fix her papers in Juarez and will trigger the 10-year bar to entry when she departs the U.S. Fortunately for her, her father became a resident in 2015, so she has a qualifying relative for the provisional waiver. She will have to prove her father will experience extreme hardship if she does not get the waiver. If Graciela did not have a U.S. resident parent, she would not have a qualifying relative and could not apply for the waiver.

Leidy came to the U.S. in 1999 from El Salvador. She married a U.S. citizen and became a resident, then a citizen. She filed an I-130 Petition for Alien Relative for her brother, Wilmer, on September 2, 2003. That petition became current three days ago, on 1 August 2016. Wilmer came to the U.S. illegally in 2002. He has to go to San Salvador to fix his papers. Fortunately for Wilmer, Leidy has already immigrated Wilmer's mother to the U.S. Wilmer can thus apply for the provisional waiver based on an extreme hardship to his mother.