201603221310072789By Attorneys Ben Loveman & Nancy E. Miller

USCIS recently announced that it expects the expanded provisional waiver program to be open for business within the first part of 2016.  Seeing as March is already upon us, it would seem the provisional waiver expansion could be here any day now.  Before the expanded waiver program could go into effect, USCIS was required to publish proposed new regulations and allow time for public comment. At last announcement, USCIS was completing review of public comments and anticipated publishing the final rule shortly.

With the new rule and program expansion right around the corner, now is a good time to take a look at the provisional waiver program and how the expansion of the program may be able to benefit you or your family.  Importantly, the program expansion will open up the waiver to many applicants who previously could not qualify.

The provisional waiver is a relatively recent and much welcomed program for those subject to the 10-year bar for being unlawfully present in the United States for a year or more.  The bar is invoked when one leaves the U.S. so it affects those who are unable to adjust their status (meaning complete their immigration process in the U.S.)  Typical applicants include persons who entered the U.S. to serve as crew members aboard a ship or airplane, persons who entered with fiancé visas but never married their fiancé petitioner, and persons who entered without papers.

For those eligible, it provides the opportunity to apply for a waiver before departing the U.S. to consular process for their green card. Thus, the immigrant can remain with their family pending a decision on their waiver.  Once the waiver is approved, the intending immigrant leaves the United States with the confidence and relief that they will only be gone a short time and will be able to return as a lawful permanent resident.

This process is a welcome contrast from the regular waiver process which requires applicants to depart the U.S. and then apply for a waiver. Under that process, the person may be outside the U.S. for at least six months while waiting for a decision on their waiver, which, of course, they hope will be favorable.  That uncertainty has caused many people to forgo applying to legalize their status.  The pain of being separated from their family for a long period of time and the possibility of denial was too great a risk.  However, the provisional waiver process eliminates most of the uncertainty by allowing for pre-approval prior to departure from the U.S.

Originally, the provisional waiver only benefitted those who had petitions filed by by a U.S. citizen spouse or child.  However, the expansion to the provisional waiver program will open it to another large group of potential applicants.  The new open the program to all applicants eligible for immigrant visa processing.  Thus, under the new regulation, all persons with an approved petition and available visa, regardless of visa category, will be eligible to participate in the provisional waiver program, if otherwise eligible.  This means that those who have overstayed their authorized period of stay and have a visa petition filed on their behalf by a parent, sibling, or employer may be eligible to apply for the provisional waiver.

Of course, obtaining a provisional waiver still requires establishing extreme hardship to a ‘qualifying relative’ which means a U.S. citizen or lawful permanent resident spouse or parent.  Here too, there are some positive developments.  On October 7, 2015 USCIS disseminated a draft policy memorandum which, if made effective, will significantly impact the way the agency makes decisions on applications for ‘extreme hardship’ waivers. The new policy would impact all types of waiver applications, including provisional waivers for unlawful presence.The new policy will provide clarification and uniform instruction to USCIS officers as to the standard that should be used to decide what factors “strongly suggest and support a finding of ‘extreme hardship’”.  Some of the factors identified include substantial displacement of care of applicant’s children, Travel Warnings against travel to country of residence, active military duty of qualifying relative, and prior grant of asylum or refugee status.  Up until now, USCIS adjudicating officers have been inconsistent in the weight or significance they gave to these and other factors.  With the new policy guidelines in effect, those whose provisional waivers were denied and who chose to remain in the United States and wait for better times, should consider reapplying.  This could be that time for them.

If you or a loved one may benefit from the coming expansion to the provisional waiver program, you should contact an experienced immigration attorney to discuss your situation.

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