QUESTION: I have heard that the provisional waivers have expanded. I have a prior deportation order and have been so afraid to have my spouse petition me because I thought I could not file a provisional waiver inside the U.S. I thought I would have to leave the U.S. and ‘hope’ that the waiver was approved. Is it true that this has changed?
Answer: Yes, the applicability of the provisional waiver has been expanded. Remember that the provisional waiver would apply only in the case where you normally would not have been inadmissible on any other grounds other than unlawful presence in the U.S. It allows you to file here in the U.S. while you are here in the U.S. If successful, then it would mean you would actually only have to leave under normal circumstances to the U.S. Consulate for only a few days and then you would return as a lawful permanent resident.
The Department of Homeland Security (DHS) has adopted changes discussed in the proposed rule. The new modifications include: (1) Clarifying that all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR), must file applications or provisional waivers with USCIS; (2) Allowing individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility; (3) Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling; (4) Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal Form I–212; and (5) Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis.
So it is a very positive development. If you have a prior deportation order and have filed the permission to reenter AND it is approved, then you will be eligible to file the provisional waiver. This development is surprising considering the increased efforts of ICE to deport as many people as it can and to restrict opportunities to people who are not here in the U.S. legally.
Question: I’m not 100 percent sure if I qualify and/or if I have a deportation order. What should I do?
Answer: It would be very important for you to obtain the advice from a qualified immigration attorney as to whether you have or do not have a deportation order and whether you should or should not file a Permission to Reenter and then at what point you would become eligible to file for the provisional waiver.
Question: How long will this take?
Answer: The permission to reenter will take about one year and the provisional waiver will take another six months.
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Atty. Brian D. Lerner has been an Immigration Attorney for nearly a quarter of a century. He is married to a Filipina and has helped thousands of Filipino families all over the country. In addition to his offices in Southern California in Long Beach and Carson, he has an office in Quezon City. He is a certified specialist in Immigration and Nationality Law by the Legal Board of Specialization, California State Bar. The initial consultation is free. Call (562) 495-0554 and/or send an e-mail to [email protected].
