New USCIS Rule Expands Eligibility for Provisional Waiver Process

U.S. Citizenship and Immigration Services publish a final rule today that expands the class of individuals who can apply for a provisional waiver of the unlawful presence grounds of inadmissibility.

Generally, a person who seeks to become a lawful permanent resident of the United States must either apply to adjust status with USCIS inside the United States or obtain an immigrant visa with U.S. Department of State at a U.S. Embassy or consulate abroad. A person who entered the United States illegally is usually ineligible to adjust status and must leave the U.S. to apply and obtain an immigrant visa abroad. A person who entered the U.S. legally but remained inside the country beyond the authorized period is also usually ineligible to adjust status. The rule is that a person who has been unlawfully present in the U.S. for more than 180 days but less than a year is inadmissible for 3 years from the date of departure (3-year bar). A person who has been unlawfully present in the U.S. for one year or more is inadmissible for 10 years from the date of the departure (10-year bar). These bars are triggered by the person’s departure from the United States.

A waiver is available for this ground of inadmissibility if the person can show that the denial of admission will result in extreme hardship to United States spouse or parent. The mechanism was to have such person leave the United States and apply for an immigrant visa at a U.S. Embassy or consulate abroad, and then file a waiver application with USCIS. The result was a lengthy separation period between such person and his/her family.

In January 2013, the Department of Homeland Security promulgated a rule that allows this type of waiver application to be filed and processed inside the United States. The Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives allows certain parent, spouse, and children of United States citizen who can show that denial of admission will result in extreme hardship to the U.S. citizen spouse or parent to file for a provisional waiver before they leave the United States to apply for an immigrant visa at a U.S. Embassy or consulate abroad. Allowing this type of waiver application to be filed and processed while the applicant remains inside the United States helps shorten the amount of time family members are separated.

Today, USCIS announced a new rule to expand this provisional waiver to all individuals who are statutorily eligible for this waiver of unlawful presence ground of inadmissibility. The new rule also extends to spouses and children who accompany or follow-to-join principal immigrants. The new rule also expands the qualifying family member to include lawful permanent resident spouse or parent. This means that extreme hardship suffered by lawful permanent resident spouse or parent would be considered by USCIS in adjudicating this type of waiver application. This new rule will become effective on August 29, 2016.

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