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There are times when foreigners sneak into the US through the back door.  If they do, marriage to a US citizen or a lawful permanent resident would not qualify them to adjust status and remain in the US.

Normally, the adjustment of status (when aliens are not required anymore to go home before they are granted a green card) is allowed for immediate relatives of US citizens and lawful permanent residents if they entered the country and underwent inspection  at the port of entry. This means they entered with tourist, student and work visas, to name a few.

If entry to the US was obtained without inspection at the port of entry, such as those who illegally crossed the border, they have to leave the country to obtain an immigrant visa.

When this happens, the wife, child or parent often gets stranded in the country for a long time where the visas are processed, and it is not uncommon for them to get stranded permanently. This situation comes about when the visa is not at all issued because they are found to be ineligible or inadmissible or that there is not enough showing that the US petitioner does not  suffer “extreme hardship” if the alien-beneficiary is not allowed to come back to the US.

The standard of ‘extreme hardship’ is very difficult to meet.  The emotional consequences of separation do not suffice.  One can just imagine the trauma experienced by the US petitioner and alien-beneficiary if the visa is not approved.  The alien beneficiary can never come back to the US unless the inadmissibility or ineligibility is rectified or resolved.

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On March 30, 2012, in an effort to ease the burden and pain caused by familial separation as the alien is abroad waiting for the visa to be approved, the Department of Homeland Security (DHS) announced the concept of “provisional unlawful presence waiver.”

In a nutshell, this provisional waiver seeks to reduce the length of time the US citizen-petitioners are separated from their immediate relatives while the latter are processing their immigrant visas abroad. Instead of requiring them to leave the US as soon as their waiver applications are filed right after the approval of their I-130 petitions, the alien relatives can now stay in the US while their waiver applications are being processed and forwarded abroad.

They will be required to depart the US in order to attend their interview in the issuing consular post in another country, if they are initially deemed to be eligible and if their waiver applications are found to be approvable, thus the term “provisional waiver.”

They have to pass the interview and prove themselves admissible before a visa is finally issued. Being granted a “provisional waiver” is not an assurance of being granted an immigrant visa at the time of the interview.  If denied, the alien-immediate relative would not be able to return to the US.

There is no appeal or motion for reconsideration that can be filed after the denial, albeit the Service can reconsider its decision on its own motion.

To date, however, this provisional waiver process is not yet in effect as further directive from DHS is being awaited.

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Significantly, only immediate relatives of US citizens are qualified to apply for the provisional waiver to the exclusion of green card holders because unlike the visas of the immediate relatives of US citizens, visas of relatives of green card holders are not immediately available.