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August 5, 2016
Typically, a foreign national who has accrued more than one hundred eighty (180) days but less than one year of unlawful presence is subject to a three (3) year bar from returning the US after a departure. A foreign national who has accrued more than one year of unlawful presence is typically subject to a ten (10) year bar from returning to the U.S. after a departure (commonly referred to as the “3/10 year bar”). While a waiver of these bars remains available, applicants may only apply for this waiver from outside the US. This process carried a very significant risk of being trapped outside of the US for months or even years pending the adjudication of the waiver. Even worse, if the waiver application were to be denied, the applicant would be unable to return to the US for 3/10 years, depending upon the previous duration of unlawful presence.
As of March 4, 2013, immediate relatives[1] of US citizens were eligible to apply for the provisional unlawful presence waiver (“601A waiver”) to request that USCIS grant a provisional waiver of these grounds of inadmissibility before departing the United States for consular processing of their immigrant visas— rather than applying for a waiver abroad after their immigrant visa interviews. This provided applicants with a significant degree of certainty that they would be eligible to return to the US after their interview because the Applicant would already know if their waiver had been granted prior to departing the US. If the 601A waiver were denied, most Applicants would simply remain in the US. In practice, while many Applicants were able to make use of the 601A Waiver to reenter, there remained a modicum of danger, as US Customs and Border Protection (CBP) ultimately determines admissibility at the time of entry. In addition, this iteration of the 601A left out many otherwise qualified individuals, such as immediate relatives of legal permanent residents (LPR).
On July 29, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a final rule, to expand the class of individuals who may be eligible for a provisional waiver of certain grounds of inadmissibility based on the accrual of unlawful presence in the United States. The final rule is to take effect on August 29, 2016.
Under the newly expanded rules, all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility[2] are eligible for the provisional waiver (“601A Expansion”), regardless of age, marital status, or immigration status. Unlike the previous 601A Waiver which limited applicants to immediate relatives of US citizens, the 601A Expansion includes individuals who have a qualifying USC or LPR relative. Under this final rule, such an individual must still go abroad to obtain an immigrant visa, establish that denial of admission will result in extreme hardship to a U.S. citizen or LPR spouse or parent, establish that his or her case warrants a favorable exercise of discretion, and meet all other regulatory requirements. Eligibility for the provisional waiver will also extend to the spouses and children who accompany or follow to join principal immigrants.
Having an approved provisional waiver helps facilitate immigrant visa issuance at DOS, streamlines both the waiver and the immigrant visa processes, and reduces the time that applicants are separated from their U.S. citizen or LPR family members, thus promoting family unity. USCIS’s stated purpose in providing the provisional waiver process is to encourage unlawfully present individuals to leave the United States, attend their immigrant visa interviews, and return to the United States legally to reunite with their U.S. citizen or lawful permanent resident (LPR) family members. The rule is intended to encourage eligible individuals to complete the immigrant visa process abroad, promote family unity, and improve administrative efficiency.
As with any changes in the law, it is extremely important that you consult with an experienced immigration attorney prior to making any decisions regarding your case, especially if such decision involves departing the US. Failure to do so may result in being subjected to the 3/10 year bar or worse.
[1] An immediate relative is defined as a spouse, parent, or unmarried child under the age of 21 of a US citizen. Parents could only qualify if their USC child was over the age of 21.
[2] Individuals must show that a qualifying USC or LPR relative (spouse or parent) would experience extreme hardship if the Applicant were denied admission to the US.