What is a "provisional waiver" and who is it for?

About a year ago, we posted about the I-601 Hardship Waiver. In that post, we described the biggest problem with the waiver -- that the applicant is not allowed to request the waiver until he or she has already departed the United States. This often causes long family absences while the applicant waits abroad, hoping that their waiver will be approved so that they can rejoin their family in the United States. Moreover, if the waiver is denied, the applicant would be unable to re-enter the country at all. That problem may soon be greatly alleviated.

Earlier this month, the final rule for a "provisional waiver" process was published by the Department of Homeland Security. The rule will take effect March 4, 2013. The provisional waiver process will allow certain applicants to request a waiver while they remain in the United States in order to prevent the need for prolonged separation from their families and to avoid the uncertainty of leaving the United States with no guarantee that they would be allowed to re-enter. Only spouses, parents, or children (17 years or older) of United States citizens are eligible for a provisional waiver. The normal requirements for approval of an I-601 hardship waiver remain as well. If approved, they will then still need to depart the United States to apply for their visa, but the process will be much quicker, and with much less uncertainty than before.

Anderson Immigration Law can help determine whether you are eligible for the new provisional waiver, guide you through the process, and prepare your waiver application for a flat fee. To speak to us about your immigration options, please contact us immediately.

Deferred Action for Students and Grads

Secretary Janet Napolitano has announced a new DHS process for some individuals to apply for "deferred action". "Deferred action" is a type of discretionary relief from deportation that gives recipients the chance to live in the United States and even gain work authorization. It does not, however, confer legal immigration status or a road to possible citizenship. The new process, outlined in a memo also released today, would allow individuals to be granted deferred action if the person:

  1. Arrived in the United States before the age of 16 and is under the age of 31;
  2. Has continuously resided in the United States for at least 5 years preceding June 15, 2012;
  3. Was present in the United States on June 15, 2012; and
  4. Is in school, has graduated from high school, received their G.E.D., or has been honorably discharged from the Armed Forces or Coast Guard.
  5. Has not been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise poses a threat to public safety or national security.


Although this new process is good news for undocumented students and graduates, there are many caveats. First, let us be clear: this is not the DREAM Act. The main difference is that the DREAM Act would have granted a legal immigration status to qualifying individuals and would have opened a possible road to permanent residence and eventual citizenship. By contrast, the new deferred action process confers no legal immigration status, but rather merely relieves the individual of the threat of deportation -- for now. Second, the process is implemented through a DHS memo, which could be revoked or amended at any time by Ms. Napolitano or any future Secretary of Homeland Security. If the political winds change, the policy and process could very easily change as well. Third, it is a merely discretionary form of relief. Although the above requirements are necessary to be granted deferred action, one must also convince the ICE or USCIS officer that he or she is deserving of the relief. This discretion means that one could fully qualify for deferred action through this new process and yet still be denied because an officer does not consider the case to merit a favorable exercise of discretion.