AMONG the series of executive actions on immigration which President Obama announced last 11/20/14 is the expansion of the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of US citizens.
As you may be aware, only immediate relatives of US citizens, i.e., spouse and minor children, who are not eligible to adjust status in the US, can apply for the provisional waiver of unlawful presence in the US before they travel abroad and obtain an immigrant visa in their respective home countries. (The provisional waiver program was initially implemented last 3/4/2013 but limited the applications to spouses and minor children of US citizens.) Stated otherwise, while the immediate relative of the US citizen still have to go home to their home countries to obtain their immigrant visa, they can now apply for the waiver provisionally before leaving the US, lessening the apprehension of the alien relative that they might not be able to eventually return the US.
Under the expanded provisional waiver program, applications may be filed as soon as the USCIS issues the new guidelines and regulations provided:
• The undocumented individuals have resided unlawfully in the United States for at least 180 days,
• These individuals are either sons or daughters of US citizens; or spouse and sons or daughters of lawful permanent residents.
The current provisional waiver program and the expanded provisional waiver program likewise aims to shorten the potential significant waits abroad that the alien relative may have to endure while the immigrant visa application is pending. (Please note that sons and daughters of US citizens refer to children of US citizens who are 21 years old or over.)
In this connection, the USCIS was also directed to clarify the meaning of the “extreme hardship” standard that must be met to obtain a waiver. Under current regulations, the undocumented alien must also be able to demonstrate that the refusal of his admission to the US will cause extreme hardship to his US citizen spouse or parent, or to the US citizen parent or permanent resident spouse or parent, in the case for the expanded provisional waiver program. This directive is important because extreme hardship is often difficult to meet and requires substantive documentation. New guidelines from the USCIS will hopefully facilitate the easier approval of provisional waiver applications.
The USCIS is currently not accepting applications on these executive actions, including the expanded provisional waiver program. The USCIS, however, has indicated that applications may be filed upon issuance of new guidelines and regulations, which hopefully will be out in the next few months.
If you are contemplating of filing any application based on these executive actions or any immigration petition for that matter, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.
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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200-105, Los Angeles, CA 90010.
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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
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