Expanded Provisional Waiver Gives Overstaying and Undocumented Immigrants Additional Options to Get a Green Card

November 8, 2016

What’s Changed

On August 29, 2016, a final rule, expanding the existing provisional waiver process to allow spouses and children of U.S. citizens and lawful permanent residents to more easily navigate the immigration process, went into effect.

U.S. Citizenship and Immigration Services (USCIS) extended eligibility for the provisional waiver process to all individuals who are statutorily qualified for immigrant visas.  First established in 2013, the provisional unlawful presence waiver process, put into place with the purpose of supporting family unity, allows immediate relatives, family-sponsored or employment-based immigrants, as well as Diversity Visa selectees to apply for a waiver of inadmissibility in the United States before they depart for their immigrant visa interview.

History of the Provisional Waiver

With the institution of the provisional waiver in 2013, individuals holding inadmissible status (on the sole ground of unlawful presence) were permitted to apply for the provisional waiver of the three and ten year bar before leaving the U.S.  The provisional waiver allowed the barred individual to remain within the United States while USCIS made their decision on the waiver. The individual would then return to their country of origin to attend their immigrant visa interview only after the waiver was approved.

Individuals who have entered the U.S. illegally and some who stayed past their authorized stay are deemed “inadmissible.”  Inadmissible aliens cannot be granted a visa or a green card in the United States and if they leave the U.S., they will be barred from reentering, often for exorbitant stretches of time.  Those individuals who are subject to being barred are generally required to get the bar “waived,” or forgiven, by filling out a waiver application.  Prior to 2013, the barred individual was required to return to his or her country of origin to apply for an immigrant visa, rather than adjusting status in the U.S.  Since rate of approval for the waiver is fairly low, many individuals capable of acquiring a green card through a family member choose not to apply because they are afraid of leaving the United States and not being able to return.

How Can You Qualify?

This new process was developed and enacted by the USCIS to shorten the time that U.S. citizens and lawful permanent resident family members are separated from their relatives while those relatives engage in the arduous process of obtaining immigrant visas to become lawful permanent residents of the United States. To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants were not granted access to remain in the United States.  Although the government has not yet supplied a definition for “extreme hardship,” USCIS has stated that they will continue to decide if such hardship is at risk on a case-by-case basis.

You must be in the process of obtaining your immigrant visa and have an immigrant visa case pending with the Department of State because you meet one of the following:

• You are the:

o   Principal beneficiary of an approved Form I-130 Petition for Alien relative; Form I-140, Petition for Alien Worker; or an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant who has paid the immigrant visa processing fee

o   Have been selected by the Department of State to participate in the Diversity Visa Program

o   The spouse or child of a principal beneficiary of an approved immigrant visa petition who has paid the immigrant visa processing fee to the DOS

o   The spouse or child of a Diversity Visa selectee

Critical Updates from the Final Rule

• Applicants for employment-based immigrant visas, certain special immigrants, and the derivative family members in each category can now use provisional waivers.
• Individuals who has immigrant visa interviews scheduled before provisional waivers first became available in 2013 can now apply for provisional waivers.
• Eligibility for the provisional waiver is now extended to all individuals who are statutorily qualified to apply.
• Applicants must prove that their family members would endure “extreme hardship” if he or she were not granted access to remain in the U.S. under the precepts of the provisional waiver.
• The final rule also makes changes to Form I-601A – Application for Provisional Unlawful Presence Waiver.