I’m often asked whether or not somebody could qualify for a provisional waiver if their sibling has filed for them or any other family member, aside from an immediate relative. The short answer is, it depends. When the program was initially enacted, you were only allowed to apply for a provisional waiver if it was an immediate relative. President Obama, in November of 2014, did say that he was going to expand provisional waivers to all family-based petitions. However, it’s really important to keep in mind that in order to get the waiver approved, you still have to have a qualifying relative in order to apply for the waiver. The only qualifying relatives that are eligible to demonstrate hardship when you are applying for a waiver are U.S. citizens or lawful permanent resident, parent, or spouse. If you’re petition is based on a sibling petition and you have no other family in the United States, then unfortunately, you’re not going to be able to demonstrate hardship to either the qualifying relatives. If you have an approved petition from your sibling and you have a U.S. citizen or green card holder parent or a spouse, then yes, you can apply for a waiver. If you don’t have either of those qualifying relatives, then unfortunately, you won’t be eligible for a provisional waiver. These are complicated cases. It’s really important to discuss your situation with an experienced immigration lawyer in New York.
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