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Provisional Waiver and Consular Processing Series: Part 1


In the first episode of this four-part series, Southwest Florida’s leading immigration attorney Pablo Hurtado tackles the most common questions regarding eligibility to apply for a provisional waiver, the differences between consular processing and filing for adjustment of status, and what to expect during an initial consultation.

I married a U.S. Citizen. Am I able to get papers?

The first step to determine eligibility for any immigration relief is to request a consultation with the attorney. At this consultation, potential clients will have the opportunity to share specific details and ask questions related to facts of their immigration case.

Mr. Hurtado begins his consultations by asking many important questions, including:

How did you enter the United States?

Did you enter with a visa: a visa waiver, a student visa, an investor visa? Did you enter illegally? Were you apprehended at the border? Determining your immigration status at the time of entry into the United States is crucial in establishing the best process available for you to receive immigration relief. During your initial consultation and while your case is open at our firm, it is important to always tell the truth and disclose all information. It is the only way for our attorneys to investigate and provide you with the best legal advice to produce a successful outcome for you and your family.

Are there other entries into the United States? When was your last entry?

Calculating the last time of entry can sometimes be the deciding factor when determining your eligibility for a provisional waiver or an adjustment of status. Oftentimes, potential clients have entered the United States on multiple occasions with and without visas. It is important to disclose all entries so the attorney can calculate how many periods of unlawful presence exist in your case. For example, if you are a Mexican citizen and entered the United States without inspection in the year 2000, then left to Mexico in 2003, and came back to the United States a few months later, your last entry into the United States is from 2003. In this scenario, two instances of unlawful presence exist. Keeping track of the number of times you have entered the United States can determine whether you qualify or not for a family-based petition.

Do you have a criminal record?

Criminal charges and convictions are a factor that can also determine eligibility. For family-based petitions, criminal charges for driving without a license, driving with a suspended license, and other misdemeanors will likely not make you ineligible for this relief. However, serious crimes and felonies will have an effect on your application, especially crimes involving drugs and firearms. For certain serious criminal charges, a separate waiver may be needed for USCIS to forgive the offense and allow you to proceed with your immigration relief. When you hire Hurtado Cavanaugh Attorneys at Law, we do our due diligence and request an FBI background check and Freedom of Information Act (FOIA) record from the United States government to ensure your criminal and immigration history will not intervene in the legal process that’s right for you.

What is the difference between consular processing and adjustment of status?

In order to qualify for an adjustment of status, an individual needs to have entered the United States legally and have remained in the country since then. When they marry a United States Citizen, their spouse can file an adjustment of status on their behalf as an immediate relative. Qualifying for an adjustment of status means the person will be able to apply for a green card inside the United States without having to travel to a consular office abroad. An individual can qualify for this relief, even if the visa they entered the United States with is now expired.

Consular processing is offered to individuals who entered the United States illegally and have only one period of unlawful presence time. These individuals must be married to a United States Citizen or a Lawful Permanent Resident. After an I-130 and provisional waiver approval, our firm will receive a date for them to attend a visa interview at the American consulate in their home country. If approved, they will be issued an immigrant visa which they can use to enter the country legally and obtain their green card.

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