The I-601A provisional waiver may help your undocumented spouse from Mexico get a green card depending on the situation of the case. This waiver is specifically designed to help people whose only inadmissibility issue that they have is for illegal presence in the United States. This means that when a person is illegally in the United States for over one year and they go to the consulate to obtain a visa, they are automatically subject to a 10-year penalty for re-entry to the United States. The only thing that is going to waive is the penalty for illegal presence in the United States. It would not waive any criminal grounds of inadmissibility. It would not waive any fraud grounds of inadmissibility. If a person has any of those grounds of inadmissibility, this is not the right waver for them. It is just going to cover the inadmissibility based on illegal presence in the United States, so when they go to the consulate, they are not stuck outside of the United States for 10 years.

A provisional waiver will not guarantee that the visa will be granted. The reason is that if the person has any other grounds of inadmissibility, this waiver is not going to waive or is not going to forgive those grounds of inadmissibility. If there are any other issues that make the person unable to come back to the United States, for instance, if they cannot show that they are not going to be public charge in the United States, then that also could nullify the waiver. There are no guarantees but if someone does not have any other issues of inadmissibility, this waiver should allow them to get their visa and return back to the United States.

A provisional waiver can help undocumented persons get an employment based green card. Based on the same criteria, if someone has a petition, even if it is an unemployment petition, they may be able to obtain a provisional waiver. The only thing is for them to be able to get a waiver in connection with the employment petition, they are going to have to show that they have a qualifying relative that will suffer extreme hardship if they are not allowed to return to the United States. In the family petition, that is almost a given that there is a qualifying relative because the qualifying relative is normally the one that files their petition. It is also important to understand that the qualifying relative can only be a spouse or a parent who happens to be a United States citizen or resident. A child is not considered a qualifying relative. If the only qualifying relative that they have is a child then that would not be a basis to prove hardship or extreme hardship to a qualifying relative.

The 2016 changes to the provisional waiver process offered hope to people in visa eligibility categories because it increased the number of people that could use this type of waiver. Originally, with the 2013 rule, only spouses and children of United States citizens, could qualify for this waiver. With the 2016 rule, spouses and children of residents can also benefit under this rule. This opened the rule for many other type of visas, even for employment visas. The good thing is that it is not so restrictive anymore, because it is not just helping people who are married to United States citizens, but it is also helping other type of people who would not qualify before.

You can prove extreme hardship using a combination of family members for a waiver application. The way that waivers work is that we have to show extreme hardship in the aggregate. What that means is that if your parents are going to suffer hardship and your spouse is also going to suffer hardship, then we cover the hardship to all the qualifying relatives that are going to suffer hardship. Although I indicated before that children are not normally qualifying relatives for this type of waivers, if a child has health problems or he has any issues, we can demonstrate how those issues are going to affect the qualifying relative making their hardship even higher. That way we can have a combination of all that hardship to show that the standard of extreme hardship is met.

You cannot normally get a faster USCIS decision on your application for provisional waiver of unlawful presence. Normally, these cases are decided on the way that they are received. There are some circumstances in which a person can request for a case to be expedited for humanitarian reasons or for health reasons but that is more the exception than the rule. They are only going to accept those kinds of requests to expedite a case if compelling circumstances are shown in the case.

If you overstayed a visa and you are marrying a U.S. citizen then you do not need an I-601A waiver. The only reason a person would need the I-601A waiver is because they need to go back to the consulate to obtain the visa at the consulate. Once they leave the country, they will be subject to the 10-year bar on re-entry. A person that entered the United States with a visa and marries a United States citizen does not have to leave the country to obtain their green card. They can apply for adjustment of status inside of the United States. Since they do not have to leave the country, no bar of re-entry is going to be triggered when they leave and then they do not need an I-601A waiver.