PRIOR to the implementation of the Provisional Unlawful Presence Waiver, undocumented individuals who are beneficiaries of an approved immigrant petition but are not eligible to adjust their status in the United States must travel to their home country to obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must file a waiver of inadmissible after they have been interviewed before a US consular officer to overcome the 3 year or 10 year bar. This has resulted in significant delays for these individuals to return to their families in the United States. The implementation of the provisional unlawful presence waiver has shortened the time that US citizen family members are separated from their immediate relatives (spouses, children and parents) by allowing these individuals to apply for the waiver of inadmissibility here in the United States. The applicants can later decide to travel to their home country to obtain their immigrant visas once the provisional waiver application is approved.
The Department of Homeland Security has published the Provisional Waiver Final Rule last July 29, 2016 and has taken effect on August 29, 2016. With the effectivity of this Rule, the provisional unlawful presence waiver process was expanded to cover all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States. With the expansion of the Provisional Unlawful Presence Waiver, all other family-sponsored or employment based beneficiaries as well as Diversity Visa Selectees are now covered.
To be eligible for a provisional waiver, the applicant must fulfill all of the following conditions:
• Be physically present in the United States to file the application and provide biometrics;
• Be 17 years of age or older;
• Be in the process of obtaining an immigrant visa and has an immigrant visa case pending with the Department of State because the applicant is:
• The principal beneficiary of an approved Form I-130, Petition for Alien Relative; an approved Form I-140 Petition for Alien Worker, or an approved Form I-360, Petition for Amerasian Worker, Widow(er) or Special immigrant who paid the immigrant visa processing fee;
• Have been selected by the Department of State to participate in the Diversity Visa (DV) Program;
• Be able to demonstrate that refusal of your admission to the United States will result in extreme h ardship to your qualifying relative ;
Individuals who are eligible to apply for the provisional unlawful presence waiver process may want to take advantage of this new rule so that they may legalize their stay in the United States.
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Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV), a full service law firm with offices in San Francisco, San Diego and Manila. 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 (415) 495-8088; (619) 955-6277; [email protected]. The CTV Attorneys will be at Max’s Restaurant in Vallejo on October 19, 2009 from 5pm to 7pm to hold a FREE legal clinic.
