THE US House of Representatives has ignored a call to pass immigration reform over the past two years, opting instead to politicize the issue. As a result, the Boehner-led House has done absolutely NOTHING, even as the Senate passed its Comprehensive Reform Bill, S. 744, last year. In the meantime, the Obama Administration has taken several initiatives to dislodge the log-jammed legal immigration process for thousands of people, including the Provisional Waiver Program.
As of March 4, 2013 certain people in the US who are ineligible to adjust status, but who may otherwise be eligible for an immigrant visa except for the “unlawful presence” bar to admission, may apply for a Provisional unlawful presence waiver while still in the United States.
The Provisional Waiver process is for certain individuals who seek a waiver of inadmissibility only for “unlawful presence;” also known as the “3 and 10 year” bars. These applicants can now apply for a provisional unlawful presence waiver while still in the United States and before departing for their immigrant visa interview at a US Embassy or Consulate abroad. Under the previous process, certain relatives of US citizens who were not eligible to adjust status in the United States had to travel abroad and be found inadmissible at their immigrant visa interview before they could apply for an inadmissibility waiver.
In 1996, Congress overhauled the Immigration & Nationality Act (“INA”) by adding many new grounds of inadmissibility to and removability from the United States. Among the more controversial grounds of inadmissibility was the 3 year bar from admission for any person who has previously been “unlawfully present” in the US for a period in excess of 180 days, and a 10-year bar if unlawfully present for 1 year or more. Only an actual departure after accruing the requisite period of unlawful presence triggers the bar from readmission, such that persons who are eligible to adjust status in the US, even after having accrued lengthy periods of unlawful presence, are not subject to the bar.
The Provisional Waiver procedure is presently available only to only Spouses of US Citizens. The applicant must demonstrate that refusal of his admission would result in “extreme hardship” to his US Citizen spouse and/or Citizen or Green Card Holder parent. In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a US citizen, inadmissible only due to “unlawful presence,” and demonstrate the denial of the waiver would result in extreme hardship to his qualifying relative(s). The major benefit of this program is that the applicant will have the approval of his Provisional Waiver in hand before departing for his immigrant visa interview abroad.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.