Proposed Provisional Waiver expansion will benefit children and spouses of green card holders

While the existing I-601A Provisional Waiver Program is limited to benefitting children and spouses of US citizens, a proposed rule will expand the categories of beneficiaries. The new rule, proposed by the United States Citizenship and Immigration Service (USCIS), will expand the waiver to benefit children and spouses of Lawful Permanent Residents (green card holders.)

One of the most challenging realities facing immigrants in this country is the 3/10 year rule.  The rule is used to punish individuals who have accrued unlawful presence in the US and then departing.  If a foreign national has remained for more than 180 days in the United States without permission—either from having entered the United States without inspection, having entered with a visa that has since expired, having entered with a crewman’s visa, or having entered the United States to marry a fiancée or fiancé but failed to do so—they will not be given permission to legally re-enter the United States for 3 years after departing. If they have remained unlawfully present in the US without permission for more than one year, they will not be given permission to legally enter the US for 10 years after departing.

The harsh consequence of accruing unlawful presence arises when a foreign national becomes the beneficiary of a family petition—either through a familial or spousal relationship with a US Citizen or a Lawful Permanent Resident.  In order for the foreign national to adjust their status to a Lawful Permanent Resident, he or she must first receive an Immigrant Visa, which requires them to submit a visa application and later attend an interview at the U.S. consulate in their country of origin.  Once this person leaves the United States to attend the visa interview, they may trigger the 3/10 rule, and are not allowed to re-enter the US for either 3 or 10 years, depending on how long they remained unlawfully in the US.

Thankfully, there is a waiver that allows foreign nationals who have accrued unlawful presence to ask for permission to enter the US legally, even when they are subject to the 3/10 rule. In order to qualify for this waiver, the foreign national must prove that their US Citizen or Lawful Permanent Resident spouse or parent will suffer extreme hardship if the foreign national is not allowed to live in the United States or if the spouse or parent joins the foreign national in the country of origin.

Until a few years ago, the foreign national had only one option—to apply for this waiver after they had already departed the US, and after they attended their visa interview in their country of origin. If USCIS denied the waiver application, the foreign national would be unable to return to their families in the United States for either 3 or 10 years. Alternatively, even if the waiver application were approved, the wait time for an approved waiver could leave the foreign national in suspense, sometimes up to months, before being allowed to legally re-enter the US.

In March of 2013, USCIS announced the Provisional Waiver Program, which provides a second option to the above scenario.  Under the Provisional Waiver Program, a foreign national who is in the United States, and whose only ground of inadmissibility is unlawful presence, can apply for the waiver and receive a decision before they depart the US to attend the visa interview in their country of origin.  This was a positive development for those foreign nationals who wanted the peace of mind that they would be allowed to re-enter the US after having departed for their Immigrant Visa interview.

The Provisional Waiver Program makes the process of obtaining a waiver easier, but it narrows who can qualify for the waiver.  Whereas the traditional waiver allows the foreign national to prove extreme hardship to either their US Citizen or Lawful Permanent Resident spouse or parent, the Provisional Waiver Program allows a waiver only for those foreign nationals who can prove denial of the waiver would result in extreme hardship only to a spouse or parent who is a US citizen.

Under the proposed expansion which is the subject of this article, USCIS may grant a provisional waiver to foreign nationals who can prove extreme hardship to their spouse or parent, whether the spouse or parent is a US citizen or a Lawful Permanent Resident.  Thus, the expansion opens up the possibility for children and spouses of Lawful Permanent Residents who have accrued unlawful presence to apply for the waiver while remaining in the United States.

The proposed Provisional Waiver expansion rule was published in the Federal register on July 22, 2015, and the agency is allowing the public 60 days to comment on the proposed regulatory change. If and when the final rule is published, the rule will indicate the date on which foreign nationals may begin to apply for provisional unlawful presence waivers under the changes.

If you have any questions about whether you or a loved one may benefit from this new proposed rule, please contact a licensed immigration attorney.

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Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience.  His offices are located in Irvine, California.