ON July 29, 2016, the USCIS published its FINAL rule, expanding eligibility for a provisional waiver of the 3\10 year bar. The expanded provisional waiver now includes “all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility.” This includes people who have a spouse or parent who is a U.S. citizen or green card holder (called “qualifying relatives”), provided they demonstrate “extreme hardship” on those qualifying relatives, and the person has an approved petition with a current priority date (or their visa is “available”). Upon approval of the waiver, they may depart the U.S. for immigrant visa processing and interview at the U.S. Embassy in their home country, without being subject to the 3\10 year bar.
A provisional waiver could benefit people who are not eligible to adjust status in the U.S., such as:
• Crewman (or jump ships), who do not have the benefit of Section 245(i);
• People who entered the U.S. without inspection (EWI), but do not have the benefit of Section 245(i) or a close family member who is on active military duty or U.S. veteran;
• People who entered the U.S. on a K-1 fiancée visa, but did not marry the U.S. citizen who petitioned them, but instead married a different U.S. citizen, or have another avenue for a green card, such as an approved employment based petition; and\or
• People who are out of status, do not have the benefit of Section 245(i), and no “immediate relative” spouse or parent. Instead, they may have a spouse or parent who is a green card holder.
In all these cases, the person is ordinarily not eligible to receive a green card (adjust status) in the U.S., but instead must go back to their home country and apply for an immigrant visa at the U.S. Embassy, which could trigger the 3/10 year bar. However, before you jump on a plane for your home country, here are some FAQ’s about this regulation:
• What is the 3/10 year bar?
The 3/10 year bar is a law, which basically states that anyone who is out of status in the U.S. for over 180 days, but less than a year, and then departs the U.S., is barred from returning to the US for 3 years. Anyone who had been out of status for over one year, and then departs is barred from returning for 10 years. This 3/10 year bar is triggered only when the alien departs the U.S.
• Who is eligible under the expanded provisional waiver process?
People eligible for the expanded provisional waiver could include:
• “Immediate relatives” of US citizens (spouse, parent, child).
• People petitioned by an LPR (green card holder) spouse or parent, or even an employer, provided they have a “qualifying relative” who would suffer extreme hardship. For example, if you have a USC child over 21 years of age, and an LPR spouse or parent, you could be petitioned by your USC child (which is faster), and qualify for an expanded provisional waiver by demonstrating extreme hardship on your LPR spouse or parent. Similarly, if you were petitioned by an employer and have an LPR parent, you could also qualify for the provisional waiver, by obtaining your immigrant visa through your employer’s petition and by demonstrating extreme hardship on your LPR parent.
• What are the benefits of the “provisional waiver” program?
This procedure would allow qualified aliens, with a U.S. citizen or LPR parent or spouse, to apply for a waiver of the 3/10 year bar, while still in the U.S., and before they depart the U.S. for immigrant visa processing overseas. If the waiver is granted, they would then depart the U.S. (with the approved waiver in hand), to be processed for their immigrant visa and return to the US as a green card holder!
• Would the provisional waiver process apply to other immigration violations or grounds of inadmissibility, such as fraud or a person entered the US under an assumed name?
No. This provisional waiver applies if the ONLY violation is “overstaying” or unlawful presence. If a person has other immigration violations, such as fraud (assumed name entry), criminal convictions, and the like, he or she is not eligible for a provisional waiver.
• If I’m being petitioned as an immediate relative, do I really need to depart the U.S.?
In many cases, people being petitioned as an “immediate relative” can still adjust status (obtain their green card), in the U.S. even if they are out of status, worked without authorization, or do not have the benefit of Section 245(i). If a person is eligible to adjust status in the U.S., they should not even think of departing the U.S., which would trigger the 3/10 year bar. See an attorney, who can determine your eligibility to adjust status in the U.S., or if you even need to depart the US to obtain your green card.
In conclusion, if you think you are eligible under the expanded provisional waiver, you should definitely seek the advice of a reputable attorney, who can evaluate your circumstances and status, determine your eligibility for a provisional waiver, and assist in preparing and processing this provisional waiver application. As you can see, only certain people would be eligible for this provisional waiver.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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