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New Rule for Expanded Provisional Waiver

Homeland Security has published a new rule, effective August 29, 2016, that will expand the availability of the provisional waiver for unlawful presence.

What is unlawful presence and the provisional waiver?

The provisional waiver serves to excuse periods of "unlawful presence" in the U.S. "Unlawful presence" generally refers to presence in the U.S. without authorization. A person who enters the U.S. without inspection, i.e. without a valid visa and inspection at the border, starts accruing "unlawful presence" upon entry. If that person accrues more than 180 days of "unlawful presence", but less than one year, she becomes subject to a 3 year bar to readmission to the U.S. The bar increases to 10 years if the period of "unlawful presence" reaches a year or more.

Generally, two types of people run the risk of accruing unlawful presence: 1) one who enters without a valid visa and is not inspected before entering the U.S.; and 2) one who overstays after lawful admission to the U.S. with a valid visa. With a few exceptions, neither group of people is eligible to receive a green card in the U.S. Rather, to obtain a green card, such a person must leave the U.S. and obtain an immigrant visa at a U.S. consulate abroad. Leaving the U.S. after accruing 180 days or a year of unlawful presence, though, will activate the 3 and 10 year bars mentioned above.

To soften the effects of these bars, DHS in 2013 began allowing those with an approved and current immigrant visa to apply in the U.S. for a provisional waiver. A grant of the provisional waiver required showing that the refusal of admission would cause "extreme hardship" to a U.S. citizen or lawful permanent resident spouse or parent.

The provisional waiver was a huge improvement over the prior system of waivers. In the former system, a person was required to leave the U.S. for an interview at a U.S. consulate, receive a decision from the consulate that a waiver was required, and then file the waiver from outside the U.S. This resulted in months and often years of waiting outside the U.S. and separation from loved ones here. With the provisional waiver, the visa applicant is interviewed at a U.S. consulate after the waiver has been approved and often receives the visa in two weeks on average.

How does the new expanded provisional waiver under the 2016 rule differ from the original rule?

First, under the original rule, a provisional waiver was limited to "immediate relatives" – spouses and children of U.S. citizens and parents of adult U.S. citizens. Under the 2016 rule anyone, not just "immediate relatives", may file a provisional waiver if they: a) are the beneficiary of a current and valid visa; and b) can demonstrate "extreme hardship" to a U.S. citizen or lawful permanent resident spouse or parent. Thus now the basis for the waiver can be a non-immediate relative family-based preference category, the diversity visa lottery, an employment-based preference category, or a special immigrant classification.

Second, the original rule made ineligible those who initially acted to schedule their immigrant visa interview prior to January 3, 2013. The 2016 rule eliminates that cutoff date.

Third, anyone with a final order of removal, deportation or exclusion was ineligible under the original rule. Now, a person with a final order may apply for a provisional waiver after he or she files Form I-212, Application for Permission to Reapply for Admission in the United States After Deportation or Removal, and receives conditional approval for that form.

Last, the new rule eliminates the "reason to believe" standard. Under the original rule, DHS denied provisional waiver applications where there was "reason to believe" that the applicant may be subject to a ground of inadmissibility other than unlawful presence. The new rule eliminates the "reason to believe" standard. Now the sole consideration for DHS to grant a provisional waiver will be whether "extreme hardship" has been established.

Contact Antonini & Cohen to file your provisional waiver

Antonini and Cohen has filed many provisional waiver applications since 2013, and we will continue to file provisional waivers under the expanded new rule. Contact us to schedule an appointment so we can assess your eligibility for a provisional waiver under the new rules.