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In order to obtain a green card through adjustment of status or consular processing, an immigrant must be classified as “admissible” by the immigration laws of the United States. The government may not only deny a request for legal permanent residency but may also refuse entry to anyone seeking to enter the U.S. if they fall within the list of grounds that characterize them as inadmissible. Examples of these grounds are for those who pose security, health, or other related risks to the people or the government of the US.
Can I do anything if I believe the government may characterize me as inadmissible to the U.S.? Thankfully, you can. There is a formal process in place for individuals to show the U.S. government that they can still meet the requirements of immigration law. This is called “the waiver process” and can be broken down into one of two options: the 601 Hardship Waiver and the 601A Provisional Waiver.
Both waivers are used to correct problems in an applicant’s history so that they can leave the U.S. to attend their interview in their birth country and return with a green card. The main difference between the two is the location of the applicant at the time of the waiver request and the level of difficulty they will face as they make their waiver arguments.
The standards are a little lower for those applicants who wish to use the hardship waiver since those individuals are required to remain outside the U.S. during the adjudication of their request which could take more than one year. The provisional waiver is specifically for those applicants who are currently living in the U.S. and who want a decision prior to leaving for their interview. The tradeoff for the security of knowing that the applicant is safe to leave and guaranteed the ability to return to the country is the increased challenge of getting the request approved. In other words, it’s harder to get approval for a provisional waiver.
So how do waivers work? For the hardship waiver, U.S. Citizenship and Immigration Services (USCIS) reevaluates the circumstances surrounding the acts that made the applicant inadmissible and weigh them against the hardship created for their U.S. relatives due to an extended absence from the family.
The process for the provisional waiver is slightly different. With this waiver, individuals who are undocumented must prove that the time and distance away from their U.S. citizen or legal resident spouse, child or parent would create an extreme hardship if they were forced to be separated should the waiver be denied. For most people, the potential period of time for separation is a minimum of 10 years. The provisional waiver is also different from the hardship waiver since the immigrant applicant gets a decision before having to leave the U.S. and risks receiving a 10-year bar.
Most people waiting for waiver decisions wait on average 1.5 years and sometimes much longer. With most of the immigration processes taking historically long times today, clients regularly ask if there is any way to expedite their waiver process so they can move on with their lives sooner. The answer is both yes and no.
For the hardship waiver process, the government does allow for expedited review requests since those applicants are experiencing a higher burden than other immigrants since they are required to remain outside the U.S. until a decision is made. The requests, however, are not automatic and require the government to review and evaluate the needs behind the expedited request. In other words, the government will need to determine if you have a unique hardship beyond the general hardship already being requested in the waiver. So, this amounts to a unique and time-sensitive hardship not previously being experienced by the applicant or their U.S. family when they submitted their request.
This right does not exist the same way for the provisional waiver since those requests are being made by individuals already permitted to remain in the U.S. Basically, the government sees the provisional waiver as already granting a significant benefit to applicants and as such, it is very rare that they will expedite the review of this type of waiver. Since there are always exceptional circumstances, it is always recommended that you speak with an immigration attorney before you give up on an attempt for such a request.
If you have questions about filing a hardship or provisional waiver request or an expedited request for a waiver already being reviewed, please contact our office to schedule a consultation at 616-805-3435 or by using the following link to schedule an appointment online: https://marvinlawoffice.com/schedule-a-consultation/