On July 29, 2016, USCIS announced it is expanding the existing provisional waiver process to allow certain family members of U.S. citizens and lawful permanent residents (“LPRs”), to apply for provisional waivers of the unlawful presence ground of inadmissibility. The expanded rule goes into effect on August 29, 2016.
Current rule on Provisional Waiver (2013)
In March 2013, USCIS started accepting applications for provisional waivers of the unlawful presence ground of inadmissibility, from immediate relatives of U.S. citizens who are physically present in the United States, based on the extreme hardship the U.S. citizen spouses or parents will suffer if the waivers were not granted.
Certain classes of “immediate relatives” of U.S. citizens – spouses, children and parents – physically present in the United States, are prohibited by law from adjusting status or getting green cards, if they (1) entered the United States without inspection or admission by the Customs and Border Protection (illegal border crossers); or (2) entered as fiancé/es (including children of fiance/es) but who did not marry their U.S. citizen fiancé/e petitioners; or (3) entered as crewmen. For these aliens, they must depart the United States and consular process – get their immigrant visas at the U.S. Embassies in their home countries. However, once these aliens depart the United States, they are barred from returning to the United States for either 3 or 10 years, due to their unlawful presence for more than 180 days or more than one (1) year, respectively. Thus, these classes of aliens are forced to endure years of separation from their U.S. citizen spouses, children or parents while they wait out the 3/10 year bars before re-applying for their immigrant visas; and/or while processing their waivers of inadmissibility (I-601) after the U.S. Embassies conclude they are inadmissible.
The 2013 provisional unlawful presence waiver was aimed at giving relief to U.S. citizen spouses and parents who suffer years of separation from their immediate relatives who are stuck abroad and cannot secure immigrant visas. Immediate relatives who belong to any of the above classes must file and secure approval of their provisional unlawful presence waivers prior to departing the United States for consular processing at U.S. Embassies in their home countries.
The waivers are “provisional” because they only take effect upon the applicants’ departure from the United States, attend their immigrant visa interviews; and a U.S. Embassy consular officer makes a determination that there are no other grounds of inadmissibility. With the approved provisional waivers, successful applicants are entitled to get immigrant visas and return to the United States without having to wait out 3 or 10 years.
Who are currently covered (2013 rule)
The current rule is limited to the “Immediate Relatives” of U.S. citizens (who must be at least 21 years old), namely: (1) Spouses; (2) Parents; and (3) Unmarried children under 21 years of age. Also included are specific classes of individuals like (4) certain Surviving spouses and Children of U. S. citizens; (5) Self petitioners; (6) Aliens entitled to conditional permanent resident status based on marriage of less than two years to a U.S. citizen. These immediate relatives must have approved Form I-130 Petition for Alien Relative, or an approved Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant; and must have already paid the immigrant visa application fee to the National visa Center (NVC).
Expanded 2016 rule
By August 29, 2016, anyone eligible to file an unlawful presence waiver under Immigration and Nationality Act Sec. 212(A)(9)(B)(v) can now apply if they have approved family-based or employment-based immigrant petitions; or special immigrant petitions; or if they are beneficiaries of the diversity visa lottery. And, legal permanent resident spouses or parents are now included as qualifying relatives for purposes of establishing extreme hardship.
Common requirement to 2013 and 2016 rules
Provisional waiver applicants must have approved immigrant petitions with priority dates that are current; and must have paid the immigrant visa application fee to the National visa Center (NVC).
When to file
USCIS will come out with an updated form for the expanded provisional waiver on August 29, 2016 and will announce a date when it will start accepting applications. Consult an experienced immigration attorney who does waivers to find out if you are covered by the new and expanded provisional waiver rules.
* * *
Atty. Aurora Vega-Buzon is a partner in Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; [email protected]
