Provisional Waivers and the Standard Waiver Process

Interviewer: What does it mean when a waiver’s provisional?

Jeanne Morales: That’s a term from this new process. Let me explain the standard process.

A Common Scenario: A Couple Marries, One of Them Is a U.S. Citizen and They Apply for the Spouse to Remain in the Country

A typical situation would be a husband and wife. One of them came to the United States, maybe they entered illegally, maybe they overstayed at legal entry, and they meet someone and they fall in love and they marry. Subsequently the U.S. citizen half of that couple wants to put in for them to stay in this country.

First Step: Filing a Petition

The standard thing that would happen is there would be one set of paperwork filed just to get the ball rolling. That’s a petition. That would establish the identity of the U.S. citizen who wants to put in paperwork and it would establish the identity of the person who would be the beneficiary of that paperwork. It would establish that there’s a legal relationship between the two that allows one to put in for the other. It could be a husband-wife; it could be a parent-child, or a brother-sister in certain circumstances.

That’s the first step. Once that’s approved, all that means is, ‘Yes, we’ve identified everyone, and on the face of it, it looks good. Go on and move to the next step.’ The vast majority of times, when somebody is unable to take the next step in the United States, what they’re required to do is make an appointment at the American Consul in Juarez, Mexico.

If One Party Is Deemed Inadmissible, They Must Return to Their Home Country and Visit the American Embassy

So they leave the United States, go to Mexico, go to an interview with the State Department in order to get an immigrant visa and reenter the United States legally.

What they’re told at that interview is, ‘Well, that’s great. You left the United States. We are glad you’re no longer breaking our law, but you’re inadmissible. We’re not going to let you go back.’

At This Point, Filing for a Waiver May Take 2 Years to Process

You can file a waiver, but you have to file a waiver from this side and it can take a long time to process. When I say “a long time” we’re talking about two years. There is a big backlog. It could be two years.

In that scenario, it is difficult to convince people to fix their papers. ‘I’m here, even though I’m working under the table, or I have to be careful when I drive because I’m not allowed to get a driver’s license. At least I’m here with my wife or husband and my kids and I’m not stuck in another country.’

When I mentioned Juarez in Mexico, I was specifically referring to people from Mexico. If they were from France, they would have to go to the embassy, I imagine, in Paris, France.

It Is Advisable to File for the 601a Provisional Waiver while Still Residing in the U.S.

Back to the story, what the provisional waiver is that same scenario, they meet, they marry, they do the first step, which is just getting the file opened and identifying everybody involved. At that point, they file a 601a while the person is still in the United States.

When that’s decided, as long as you’re here and you’re working and you’re with your family and there’s no hardship to you waiting in another country, it’s more likely that people will follow that route, so they file that provisional waiver.

If Granted a Provisional Waiver, the Individual Must Still Return to the Home Country and Re-Enter the U.S. Legally

When it’s approved, it’s approved provisionally, which means, ‘It looks like you meet all the requirements to get a waiver,’ and so then the person leaves the country, goes to their associated consulate, and then reenters legally.

That is the reason why the word “provisional” is in there. Ultimately the person issuing the visa and the person letting you back into the United States has the final say.

There’s so many hoops to jump through in Immigration it’s not even funny. That’s why they attach the word “provisional.” It is like, ‘Yes, it looks good. Go ahead. Make your arrangements and travel.  Continue the process by returning to your country and seeking a legal visa to reenter the United States, because it looks like you qualify for this waiver.’

It Is Possible for the Provisional Waiver to Be Withdrawn

But things could happen between the time you get the waiver and the time you attempt to reenter the United States, so that’s why they don’t want people to think it’s absolutely positively can never be withdrawn or another set of eyes could look at it and say, “No, we don’t think you qualify.” That’s why they hang that adjective on it.