You and your spouse qualify to apply for consular process. Your attorney has explained the process and advised you that you’ll need a waiver of inadmissibility for illegal presence. She’s given you the options and explained the differences between the two types of waiver. But now you’re at home, discussing it with your spouse, and you can’t remember which is which. There are so many factors to consider…and so many stressful things to worry about! You qualify for the provisional waiver, but is that the best choice for you? Which is better for you and why? To make a good decision that fits your family’s needs, you must fully understand the difference between the two waivers, the requirements for each, and the likelihood of approval for each. Because even if you qualify for the provisional waiver, there may be some reasons for choosing the normal waiver instead. To understand, let’s discuss the differences between the two.
The provisional waiver process is completed while you are still here in the United States. You will apply for the waiver here, before you’ve departed the United States for an appointment at the Consulate in your country. Once you’ve submitted your waiver application, you will have a waiting period of about 4-6 months before you will receive a decision from Immigration on the application. If you receive an approval, you will depart the United States for your appointment at the Consulate and return to the United States in about a week or two, with a stamped passport in hand. This process sounds incredibly appealing, of course: you can complete most of the process right here in the United States and you’re only outside the country for a week or two. For people with demanding jobs, kids in school, health problems, and other such situations, the provisional waiver sounds great. Unfortunately, the provisional waiver isn’t as easy as it sounds. The process is demanding and it often ends in disappointment if the waiver isn’t approved. Unfortunately, the approval rate for the provisional waiver is fairly low. Nationally, only about half of these waivers are approved. For an approval, you must have the facts in your favor and you must be able to prove those facts.
For both waivers, you must show that the refusal of your admission to the United States will cause extreme hardship to your spouse. To demonstrate extreme hardship in provisional waiver cases, Immigration has thus far required applicants to show two things: (1) that it would cause extreme hardship to the spouse if he or she had to relocate to the applicant’s country of origin, and (2) that it would cause extreme hardship to the spouse if he or she was left behind in the United States while the applicant relocated to his country of origin. And so far, Immigration has been fairly demanding as far as what it requires to demonstrate extreme hardship. In approved cases, several of the following factors generally exist:
- the couple has children together,
- the couple has been married for more than a year or so or they have been living together for many years,
- the U.S. citizen depends almost entirely on the applicant for financial support (e., the U.S. citizen does not work at all, or he or she earns very little money, often due to a lack of education),
- the U.S. citizen suffers from a significant physical or psychological health problem that causes him or her to depend entirely on the applicant for financial, physical, and emotional support,
- the U.S. citizen has extensive family ties and obligations in the U.S. (so that he or she cannot leave), or has no family support in the U.S. (so that he or she cannot survive in the U.S. without the applicant’s support), and
- the U.S. citizen is not a native of the same country as the applicant.
If several of the above factors are present in your case, you should certainly consider applying the provisional waiver. Keep in mind, however, that you must have evidence to back up your claims. If, for example, you plan to claim that your U.S. citizen spouse has a significant health issue that causes him or her to depend on you for financial and physical support, you should be able to provide things like a letter from a medical doctor substantiating the health issue and copies of medical bills evidencing your debt. A mere personal statement concerning these things is not enough; you must have actual evidence to back up your claim.
So what if only one or two of the above factors are present in your case? Or what if you believe some of the factors are present but for some reason you have no evidence to back up your claim? Should you try for the provisional waiver anyway? The answer is that it depends upon your financial means and your willingness to take a chance. Some people would rather avoid the risk of facing emotional turmoil if the waiver is denied. Some people may not have the financial resources to risk having to pay two filing fees (note that if you are denied the provisional waiver but you want to proceed with consular process anyway, you will have to apply for the normal waiver—and pay additional attorney fees plus the filing fee—to complete the process). In making your decision, you should balance the positives and negatives and come up with a reasoned decision based on the facts of your case and your family’s needs. Your attorney is your best resource for helping you gauge the likelihood of being approved for the provisional waiver.
If you decide the provisional waiver just isn’t for you, your other option is the normal waiver. With the normal waiver, you will take all necessary steps to secure an appointment at the Consulate in your country. Once you receive an appointment, you’ll depart the United States. While at the appointment, the Consulate will inform you that a waiver is required in your case. Your attorney will then submit the waiver on your behalf, and you will wait in your country for approximately 6 months until a decision is made. During that waiting period, you must remain in your country. Once the waiver is approved, you will complete the process through the Consulate and be given instructions for entering the U.S. with a stamped passport. Although the thought of remaining outside the U.S. for such a long period of time sounds unappealing to most people, you will take comfort in knowing that the approval rate for the normal waiver is very high. Assuming you’ve been properly screened by an experienced immigration attorney, you will know before you ever depart the U.S. for your appointment whether it is in your best interest to do so.
Now that you know some of these basic facts about the two different waivers, you should be better equipped to make an informed decision in your case. Remember that your best resource for information and advice is your attorney. Do your research and choose an attorney who is experienced in handling the waiver portion of consular process cases. After all, this is often the most critical and time-consuming part of the case. With an experienced attorney on your side, the light at the end of the tunnel—your legal permanent residency card!—is just within your reach.