The greatest change of the year in immigration law occurred on March 4. Before that date, in order to earn lawful permanent residency, many U.S. citizens’ undocumented spouses and children who had resided unlawfully in the United States for longer than 180 days had to leave this country and apply at a U.S. embassy abroad for a waiver to excuse their unlawful presence. After March 4, they could do so before leaving this country.

The government doesn’t easily grant such waivers because the law requires applicants to show that their U.S. citizen spouse or parent will suffer extreme hardship if the applicant is not allowed to return. Since U.S. embassies are bombarded with visa applications, the waiver applications took months, sometimes years, to decide. That meant long periods of separation for families, who didn’t know whether the government would approve their family member’s application for a waiver.
By approving waiver applications before the applicant leaves the country, the government achieves two results. It removes the anxiety many families feel when their family members left the country not knowing whether the government would grant their waiver applications. Also, it greatly shortened the amount of time the family member had to stay outside of the country. Before March 4, family separation could last longer than a year. Now, the separation can be as little as a few weeks.
According to the National Benefit Center (NBC), the government received 23,949 applications for the provisional waiver from March 4 through Sept. 14. It receives about 600 applications a week. As of Sept. 14, the government issued 3,497 approvals. Those with pending applications remain in their homes with their spouses and children, which achieves the major goal in changing the procedure.
Not every spouse or child of a U.S. citizen qualifies to apply for the provisional waiver program. Qualified applicants for this new procedure must have a spouse or parent who is a U.S. citizen. If the applicant is inadmissible to the United States on a separate basis, e.g., criminal history or prior deportations, the applicant must immigrate through the old procedure.
According to the NBC, the majority of the denials were because the adjudicator had a “reason to believe” the individual is inadmissible on a ground other than just prior unlawful presence. The reason-to-believe standard is controversial because it lacks clear criteria.
NBC officials have stated that regulations and more clear guidelines are forthcoming. Given the lack of certainty, individuals considering applying for the provisional waiver should consult with a qualified immigration attorney before filing.
The second most common ground for denials is the applicant’s failure to show that his or her spouse or parent will suffer extreme hardship. Lawyers should provide as much evidence of hardship as possible: medical records for the entire family, including psychological evaluations; school, tax, property and church records; affidavits from family and friends; photographs; and any other evidence that demonstrates that losing this family member will result in an extreme hardship.
The government adjudicates these types of waivers on a case-by-case basis. Lawyers should discuss their clients’ circumstances in detail to discover the particular hardship presented in each case and be imaginative in presenting the hardship evidence to the government.
Although the adjudicator is required to review only hardship to a U.S. citizen spouse or parent, raising a child alone is a hardship. As such, immigration lawyers should include hardship to any children, connecting the child’s hardship to the qualifying relative.
The provisional waiver helps maintain family unity and is a positive change to the immigration system. But it is not permanent immigration reform that brings resolution to the country’s ongoing immigration problem. Until Congress hears the call for legislative reform, the administration will have to continue to tweak procedures to attempt to achieve these results.
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