AS you may be aware, the USCIS is seeking comments from the public regarding the proposed rule on the “Expansion of Provisional Unlawful Presence Waivers of Inadmissibility” which was published last July 22, 2015 in the Federal Register (copy is s available online). Deadline for submission of comments on the proposed rule is on 9/21/2015. The USCIS has emphasized in the notice it issued that “(t)hese proposed changes do not take effect with the publication of the notice of proposed rulemaking. When the final rule is published, the final rule will indicate the date on which foreign nationals may begin to apply for provisional unlawful presence waivers under the changes.” In other words, no provisional unlawful presence waivers are currently being accepted by the USCIS.
At present, provisional unlawful presence waivers are only available to specific immediate relatives (spouses, children, and parents) of US citizens who are in the US and are inadmissible solely due to unlawful presence. If these immediate relatives can prove that denial of the provisional unlawful presence waiver will result extreme hardship to their US citizen spouse or parent, the USCIS will provisionally grant the waiver application before they leave the US for consular processing of their immigrant visa applications at their home countries.
Under said rules, the USCIS proposes the following:
• Expand the class of aliens who can file for provisional unlawful presence waiver to include “family-sponsored immigrants, employment-based immigrants, certain special immigrants, and Diversity Visa program selectees, together with their derivative spouses and children”. These generally refer to beneficiaries of approved I-130, I-360, I-140 applications, and to their derivative spouses and children. The USCIS stated that to be qualified, the alien beneficiary must have an immigrant visa case pending with the Department of State and has paid the immigrant visa processing fee.
• Permit the alien beneficiary to establish the eligibility requirement of showing extreme hardship to any qualifying relative (namely, US citizen or lawful permanent resident spouses or parents). As earlier stated, currently the qualifying relative for this waiver refer to US citizen spouse or parent only.
Please note that the alien beneficiary must still meet all eligibility requirements under current law. The USCIS emphasized in the proposed rules that “DHS does not propose to change any eligibility requirements for a provisional waiver other than those described in this rulemaking.
If you are contemplating of filing any immigrant or non-immigration application, 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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