THE Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives allows certain immediate relatives (spouses, children under 21 years old and parents of US citizens) to apply for provisional unlawful presence waivers of inadmissibility in the US before they depart to their countries of origin for consular processing of their immigrant visa applications. (The USCIS is currently not accepting application for the expanded provisional waiver program which was part of President Obama’s 2014 executive actions. It covers sons or daughters of US citizens; or spouse and sons or daughters of lawful permanent residents. No implementing rules have been issued.)
Allowing the application of the provisional unlawful presence waivers to be filed in the US, rather than in the country of origin of the alien, significantly reduces the length of time of separation between the US citizen and their immediate relatives while the latter are abroad waiting for their immigrant visa applications to be processed.
As you may be aware, certain immediate relatives of US citizens are not allowed to apply for adjustment of their status in the US due to admissibility concerns. For instance, aliens who have entered the US illegally or entered without inspection (“EW” or entry without inspection”) cannot adjust in the US, even if they are spouses or children of US citizens. Under the old rule, they must apply for a waiver application after they have appeared for an immigrant visa interview abroad and after a determination by the Department of State, through its embassies and consulates, that they are inadmissible.
To be eligible for the provisional waiver application, the alien must be, among others, (1) present in the US at the time of filing, and for biometrics, (2) a beneficiary of an approved immediate relative petition, and (3) an immediate relative (as discussed above). In addition, the alien must have a pending case with the Department of State (DOS) pursuant to the approved immediate relative petition and has paid the entire required immigrant visa processing fees. Also, the applicant alien cannot be under seventeen (17) years of age.
The only ground covered by the provisional waiver application is unlawful presence in the US, i.e., an alien who has accumulated 180 days of unlawful presence in the US and leaves for abroad is barred for three years while an alien who has accumulated one year or more of unlawful presence is barred from the US for 10 years. Thus, other grounds of inadmissibility such as criminal grounds or fraud and misrepresentation are not covered under these final rules.
In certain waiver applications, it must be shown and demonstrated that the qualifying relative will suffer extreme hardship in the event the alien beneficiary is denied admission to the US. For purposes of establishing extreme hardship in this provisional waiver application, the qualifying relative must be a US citizen spouse or parent. A US citizen child cannot be considered a qualifying relative for this purpose nor can a legal permanent resident spouse, parent or child be considered as one
If you are contemplating of filing any other 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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