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Executive Action and the Expansion of the Provisional Waiver: A Huge Step Towards Preserving Family Unity

In March, 2013, the Provisional Waiver of Unlawful Presence (Form I-601A) was implemented by USCIS. This was a tremendous step forward for individuals married to U.S. Citizens who were unable to adjust status in the United States - - often due to the fact that they entered without inspection and lacked the old 245-i waiver which would excuse such an entry.

The provisional waiver relates only to the 3/10 year bar to admissibility that was created with the vast amendments to the immigration laws contained in IIRIRA in 1997 - (INA 212(a)(9)(B)). Generally speaking, if an alien were to remain in the U.S. unlawfully for more than 6 months but less than 1 year and then were to leave the U.S., they would trigger a three (3) bar to reentry. If they accrued unlawful presence of more than one (1) year, they triggered a ten (10) year bar to reentry. The bar is only triggered upon departure from the United States.

This was and continues to be a big problem for people who were unable to adjust status here in the United States (primarily those who had entered without inspection or as crewmen). For those people who could not claim eligibility for the old 245-i waiver but who did have an approved petition from which they could derive lawful permanent residence, they would have to make the decision to either forgo an attempt at status or leave the United States and process at the Consulate. The moment they departed, the 3/10 year bar would be triggered.

These people would go for their Consular interview where they would be advised that they were not admissible in light of the 3/10 year bar. They have always been eligible (and continue to be eligible) to apply for a waiver of inadmissibility at that point in time.[1] However, it would often take many months (or more) for a decision to be made on the waiver. All of this time would be spent outside the U.S. If the waiver was denied, the person would be staring at a three or ten year wait for the bar to expire. For these reasons, we have rarely, if ever, advised a client to leave the U.S. for Consular Processing when we knew that they would trigger the 3/10 year bar.

History of the Provisional Waiver:

To alleviate these problems, in 2013 USCIS created "an alternative process for certain immediate relatives of U.S. Citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. Citizen spouse or parent would cause that U.S. Citizen relative extreme hardship". The initial incarnation of the provisional waiver was strictly limited to immediate relatives, to wit:

  • An alien whose spouse is a U.S. Citizen
  • An alien under 21 years of age whose parent is a U.S. Citizen[2]
  • An alien whose son or daughter is a U.S. Citizen over the age of 21

In order to qualify for the waiver, one had to establish that their U.S. Citizen spouse or parent (but not adult son or daughter) would suffer extreme hardship were the waiver not approved.

The Provisional Waiver Expansion:

In his Memorandum of November 20, 2014, Secretary of the Department of Homeland Security, Jeh Johnson, directed that his Department:

amend its 2013 regulation to expand access to the provisional waiver program to all statutorily eligible classes of relatives for whom an immigrant visa is immediately available. The purpose behind today's announcement remains the same as in 2013 - - family unity.

Specifically, this means that the provisional waiver will now also be available for family members whose petitions have been subject to the visa preference system such as spouses and children of lawful permanent residents (Family 2A preference category), adult sons and daughters of U.S. Citizens (Family 1st preference category) and adult sons and daughters of lawful permanent residents (Family 2B preference category). While the beneficiary of a visa preference petition will still need to wait for the priority date to become current pursuant to the Visa Bulletin published by the Department of State, this is nonetheless excellent news for thousands and thousands of individuals who have been hoping to acquire their residency via a family petition.

It is important to note that the granting of the provisional waiver does not allow an individual to adjust status in the United States. The beneficiary will still need to travel to the U.S. Consulate abroad for the visa interview. However, in our experience with these provisional waiver cases over the past twenty (20) months, the length of the beneficiary's trip abroad should not be more than 2 or 3 weeks. After visa approval, the beneficiary enters the United States as a lawful permanent resident.

More details regarding the scope of this expansion will be forthcoming as new guidelines and regulations are created. We are looking forward to helping old and new clients alike to benefit from this extraordinary development in our immigration policy!! Please stay tuned to our Blog for a discussion of some of the other important aspects of President Obama's Executive Action including a piece I will prepare shortly on the definition and interpretation of the term extreme hardship.

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[1] Previously, waiver applications would either be filed at the Consulate or at an overseas USCIS office (Rome, Panama City, etc.). Beginning in 2013, all waiver applications are now filed at a lockbox in Arizona and adjudicated by USCIS officers in the United States. They have a stated goal of adjudicating waivers within three (3) months but I have heard that it is often taking longer than that.

[2] Please keep in mind that a minor does not accrue unlawful presence. Hence, the three (3) year bar is not triggered unless a child who had been present in the U.S. prior to their 18th birthday leaves the U.S. after the age of 18 years and 6 months and a child does not trigger the ten (10) year bar unless they leave after the age of 19 years. This is why it is sometimes a good idea to encourage a minor to leave the U.S. voluntarily if there is potential to Consular Process in the near future.

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