Welcome to our live immigration attorney chat. My name is Attorney Vanessa Ruiz and this is our
weekly live chat where we have different topics, keeping you up to date with the latest immigration
news, and also just kind of going through some of the questions that a lot of people have. If
somebody has had that question before, most the time you have as well or somebody else that you
know does so that's the point of these Facebook lives. We just really like to kind of interact
with people as much as we can and spread some good information. For those of you who are new
to our Facebook page or to our firm, we are Immigration for Couples and we're dedicated
exclusively to helping couples navigate the US immigration process so it's something that is
not always the smoothest. It's sometimes a little bit bumpy, takes a really long time,
and so that's what we're here for is we try and take away that stress from our clients and from
our couples and we assist them, we assist people across the nation, across the world everywhere
so we're here to just help make people's lives a little bit easier especially with something
that can be very stressful and definitely something that impacts a lot of people's lives.
Today, I'm going to be discussing a particular kind of waiver. For those of you who follow
our Facebook lives, this week is waiver week. Attorney Desiree kind of gave a general overview
in the last video about waivers and essentially how to set yourself up for success. She kind of
went over different types generally and what they really kind of are for and but today we're going
to talk specifically about one particular kind of waiver and it's one of the ones that we encounter
very often and it is called the I-601A provisional waiver. A lot of people ask, how do I know that I
need a waiver how do I know what I need to provide to win the waiver to get approved for the waiver?
That honestly is going to depend on the reason why you're requesting a waiver.
As Attorney Desiree mentioned in her overview of waivers, each waiver is essentially there to cure
a certain ground of inadmissibility meaning there's something that will not allow you to
become a permanent resident in the U.S because of XYZ reasons. It could be criminal grounds,
it could be unlawful presence, it could be drug usage, things like that. You just never know.
Immigration histories are complex if people have been in removal proceedings before, all those are
reasons why someone might need a waiver but each waiver is going to target something specifically.
One of the biggest misconceptions is that a waiver is a waiver is a waiver period and
that's not true. There are many different types of waivers and each one is specifically for some
specific issue. We have seen a lot of people who try to do things themselves and will submit
what they think is what the waiver that they need, it turns out they end up getting denied,
they lost time, they lost government fees. In order to avoid all that, it's better to get
a legal analysis on your case specifically. A lot of times people think that maybe they don't
need a waiver they think oh no my case is easy it's clean it's really not. You never know what
could trigger a ground of admissibility and so the legal analysis and having a consultation with an
attorney and having an attorney walk you through the process and help you through the process
really and truly is invaluable. Before we start talking about the provisional waiver in specifics,
I think we need to have a little bit of a history lesson. The provisional waiver is
essentially pretty new. It came around in 2016. In the immigration world and with general rules and
laws that date back decades, that's a baby. This provisional waiver is still a baby in a sense that
it only came around within the last decade. Before the provisional waiver came around, if anybody had
any kind of unlawful presence so time in the U.S without permission so if somebody entered the U.S
without permission or if somebody entered with permission, entered lawfully with a Visa maybe,
a tourist visa a student visa a work visa anything like that and they overstayed the time allowed.
If they were given six months on a tourist visa starting six months and one day, if you did not
leave you are accumulating unlawful presence. In the past, if people had unlawful presence of more
than six months they were deemed inadmissible. Especially for those people who were going through
consular process, most of the time they didn't find out that they were inadmissible until they
actually either went to their interview in their home country or if they had previously been in the
U.S left for their interview and then they were told, I'm sorry you're inadmissible because you
were there for over six months you were there for over a year things like that and so what
happens was this they created this provisional waiver for those people who specifically are
in the U.S already. Most of the time the people who are going to be eligible for this waiver are
those who are consular processing meaning that they have to return to their home country to
actually get their interview done and get approved outside of the U.S. This isn't for people who
are adjusting their status in the U.S. It's for those who are eventually going to have to leave
and it's for people who are already in the US or still in the U.S after having been admitted
lawfully or having entered without permission. This particular waiver is one of the ones that's
most talked about in a lot of immigration groups and when you research because it applies to a lot
of people who are already in the U.S. We just like to kind of give that warning to say you need to be
able to qualify for this waiver to go ahead and do it in the U.S. Not everybody qualifies for it,
not everybody needs it either so definitely just trying to get an analysis on your specific case is
going to help you a lot but essentially what this provisional waiver does is if somebody is in the
U.S and they have more than six months of unlawful presence so like I mentioned either they enter the
US without permission and they've been here since or they entered with permission overstayed their
time by more than six months and are still here and they are going to consular process so they're
being petitioned by somebody and eventually will have to leave to go do their interview,
this waiver could be available to this person. This particular waiver only cures one ground of
inadmissibility and that's the unlawful presence. If there's any other kind of issue, if there has
been some kind of misrepresentation or fraud, there's been any kind of alien smuggling meaning
you brought over a family member with you without permission, if there's been any kind of criminal
issues that need to be waived, things like that this waiver will not cure any of that and this
waiver actually should not be requested if you have other issues as well because this waiver is
supposed to be for one thing and one thing only and that's for that unlawful presence in the U.S
and that is it. Essentially the way we see this waiver a lot is when somebody is being petitioned
for either by usually a spouse, a child, a parent things like that just depends on the situation but
essentially they are in the U.S, they've already been petitioned, that petition has been approved
and now comes time to apply for the consular processing. Right before they leave for their
actual interview, we want to make sure that that person has a provisional waiver already approved
and so there is a specific timing there is timing that needs to be taken into consideration. There's
timing that needs to be kind of matched up with when they're going to leave because all this needs
to be done before they leave. The reason that it's called the provisional waiver is because
it's a temporary grant. It's not final until the person has been approved at the consulate and so
the reason that's why it's provisional is because it's a placeholder it's temporary it is approved
before you leave but essentially what they're saying is that the consular officer has the final
say and so at the consular interview that officer could revoke the approval. Normally it's going
to happen if there's any other kind of ground of inadmissibility and that's why I said if there's
any kind of misrepresentation, fraud, criminal issues, it's best not even to request a slavery
because what's going to happen is you're going to invest a lot of time effort money government
fees into this waiver only to have it revoked when it comes time for the actual interview.
That's why we say you know it cures one thing and one thing only and if you have anything else it's
not for you so essentially it's provisional like I said because the consular officer
could decide at the end there is another ground of inadmissibility and because of that we're going to
revoke this approval because it was a provisional approval and now we're going to request that you
seek a different kind of waiver and the waiver needs to include XYZ grounds of inadmissibility.
That's what makes it provisional. One of the keys as well to this waiver is that you have
to have a qualifying relative. The way that the rule for this waiver is written is that
a qualifying relative can only be a resident or citizen spouse or parent. It cannot be children.
A lot of times, people find themselves in a difficult situation where they don't
qualify for this waiver because they don't have a qualifying relative. That qualifying relative,
the kind of key to being able to request the waiver is going to be a resident or
citizen spouse or parent. Children again do not count. I can't tell you how many cases,
consultations, and people that I've talked to who are like I don't have a resident assistant spouse
or parent I only have a U.S citizen child and that child is the one who's petitioning for me
and unfortunately that person does not qualify for this waiver because children cannot be included as
a qualifying relative. That's one of the keys as well. The next part of it is not only do you have
to have that qualifying relative but you have to be able to prove that that qualifying relative,
your U.S citizen or resident spouse or parent, is going to suffer extreme hardship without
you. What does extreme hardship mean? Extreme hardship is an ambiguous type of term because
it rises to the level of extreme and that is going to be determined on a case-by-case basis
so another reason why you definitely want to have an attorney helping you with this is because no
two waivers are the same. I have done hundreds of waivers throughout my career and honestly
none of them have been the same. A lot of them may follow general types of patterns but none of
them have been the same because everybody's life is different. Extreme hardship to your spouse or
parent who's a resident or a citizen need can be proven in multiple different ways depending
on the situation. If you have older parents, a lot of times you know it's going to take into
consideration the fact that they need help. They need additional care, they may have health issues
you might be their financials provider things like that and so a lot of times that's what happens
with older parents but not always sometimes times it can be the fspouse for this exact same reasons.
If somebody has extreme physical conditions or needs certain types of treatments or medications,
it can be not only physical but it can be mental and emotional. If people are suffering
from anxiety, depression, different types of conditions. If there's medication being taken, if
somebody has you know a severe financial need and that person definitely needs the
help of their partner or of their child if you're using the parents
um you know it can be Financial emotional medical all of those things. A lot of times we tackle one
because it's the strongest one and we include information about the rest or sometimes we kind
of give them a general picture of this is this person's life and this is why they need to be able
to be in the U.S with either their spouse or their parent because that person is going to suffer
extreme hardship if their spouse or child in that case we're not in the U.S in order to help them.
There's a lot of factors that go into it, there's a lot of details, a lot of strategy.
Again like I said each case is different and each one requires an individual analysis just because
no two cases are the same and what made somebody else's case strong may not be the strongest point
for you but you might have something else that somebody else doesn't so super super important
to keep that in mind that it's not really a cookie cutter type solution each one is done
individually and each one is it should be for sure determined for the strength of that case so and
that's generally what the provisional waiver is. Like I said just to kind of give a quick rundown
it's for people who are in the U.S who have some kind of unlawful presence of more than six months.
It does not apply to people who potentially have been coming in and out of the U.S without
permission staying for certain times, leaving. It may not apply if you know even though people
are entering lawfully they've stayed long times left come back these are all really things that
need to be analyzed and determined before filing any kind of waiver. It may sound like it applies
to you but it may not in the long run or you might think I don't need it but it turns out
you do so like I said and I will keep saying in all of my videos having that analysis from
an immigration attorney who has the experience and the knowledge is going to be invaluable. I
promise you that. I've had many people who like I said have filed waivers on their own thinking
from my research I think this is what I need and it turns out that it wasn't at all. Another key
thing about the provisional waiver as well is that it takes a really long time to get approved right
now. Unfortunately once the pandemic started, it was one of the ones that I don't know why
specifically but has been affected the most by the wait times. In the past before COVID,
it might have taken nine months to get one of these waivers approved now we're sitting at two
years and so you don't want to file something that you think you qualify for without getting analysis
only to find out two years later that you didn't need it or that it was the wrong type. I'm going
to talk about different kinds of waivers tomorrow and then starting again on Monday of next week.
We'll be discussing other types but essentially get legal advice always to see if you qualify
for a provisional waiver to see if you need a provisional waiver and if you do, to determine the
best strategy. Like I said, it is an investment of time it's sitting at about two years right now
there is a government fee that's associated with it and what you don't want is to waste
time that you didn't need to or to essentially be told later on this waiver is not strong enough
we're going to deny it and when you could have done it right and could have done it strong from
the beginning. That is generally the provisional waiver there's a lot more to it though so if you
need some help as always you can visit our website Immigrationforcouples.com schedule a consultation,
speak to an attorney because nothing is ever going to beat that. For those of you
who use different kinds of social medias please like share this video across Facebook,
across other platforms and that way people can get good information from it. Thank you
for being here today for watching if you're watching on replay feel free also to leave
us comments as always letting us know if you have any questions and it might
be the subject of another video later on so I hope you all have a great day