Provisional Waivers for Spouse and Children of Green Card Holder

Provisional Waiver Spouses and Children of Legal Permanent Resident

On November 20, 2014, President Obama took Executive Action on immigration. The President expanded Provisional Waivers to spouses and children of legal permanent residents.

Currently, undocumented spouses and children of legal permanent residents who are statutorily eligible for immigrant visas must leave the U.S. and be interviewed at U.S. consulates abroad to obtain those visas. If these qualifying individuals have been in the U.S. unlawfully for over six months and they later leave the U.S., because of their departure they are banned from returning to the U.S. for 3-10 years. These individuals can pursue a waiver of the 3-10 year ban if they can demonstrate that their absence from the U.S. for this length of time imposes an “extreme hardship" to a U.S. citizen or lawful permanent resident spouse or parent. Some of these statutorily eligible individuals can apply for a “provisional waiver” before departing for the consular interview. This “provisional waiver” gave them a level of certainty that they would be able to return after a successful consular interview with minimal delay.

In the November 20, 2014, Executive Action, President Obama expanded the “provisional waiver” program to include all statutorily eligible classes of relatives for whom an immigrant visa is immediately available, such as spouses and children of legal permanent residents.

In addition, USCIS is instructed to provide additional guidance on the definition of “extreme hardship”. The original statute did not define that term no r has it been defined through the federal courts. Clearer meaning of the term “extreme hardship” will allow for more consistent granting of “provisional waivers”. Factors that should be considered for further explanation include, but are not limited to:

  • family ties to the U.S. and the country of removal
  • conditions in the country of removal
  • age of the U.S. citizen or legal permanent resident, spouse, or parent
  • length of residence in the U.S.
  • relevant medical and mental health conditions
  • financial hardships
  • educational hardships