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It's about time we received some good news on Immigration!! The Final Rule for the Expanded Provisional Waiver !!

If feels like 2016 has been a bit of a rollercoaster for those of us in favor of sensible immigration reform. The anticipation for DAPA/Expanded DACA led us through the highs and lows of Federal Court litigation and culminated with last month's disappointing decision from the Supreme Court. However, while the media focus and political debate centered on this litigation, some of us were holding our breath on what potentially is a bigger opportunity for the undocumented - - the Expansion of the Provisional Waiver for Unlawful Presence.

Since its inception in 2013, the Provisional Waiver has allowed certain Immediate Relatives of U.S. Citizens to return to their home country and process their residency through the Consulate despite having accrued unlawful presence in the United States. The Provisional Waiver - - based upon the extreme hardship a Qualifying Relative Spouse or Parent would face - - would excuse the 3 or 10 year bar to reentry prior to an applicant departing the United States to complete Consular Processing. This program has been extremely successful and tens of thousands of previously undocumented individuals have been able to acquire their residency without facing extensive separations from their families.

This morning USCIS released the 119 page Final Rule for the Expanded Provisional Waiver. Many may recall that the proposal for this rule change was initially announced in July 2015. In response to the proposed rule change USCIS received over 600 public comments, several of which were incorporated into what has become the final rule. Now with publication in the Federal Register, the Expansion of the Provisional Waiver will become effective August 29, 2016.

Some highlights of the Expanded Provisional Waiver include:

  • Most importantly, this new rule expands the class of individuals who may be eligible for a Provisional Waiver of inadmissibility based solely on their unlawful presence in the United States. While the original 2013 version of the Provisional Waiver was limited to Immediate Relatives of U.S. Citizens, now every Family Based preference category maybe eligible for the Provisional Waiver provided that they have a Qualifying Relative.

  • Whereas the original Provisional Waiver limited the Qualifying Relative to U.S. Citizens, the Expanded waiver is available to those who have a Qualifying Relative Spouse or Parent who is a U.S. Citizen or Lawful Permanent Resident. It is important to understand that the applicant must have a Qualifying Relative Spouse or Parent - - a child still does not constitute a Qualifying Relative.

  • This Expanded Provisional Waiver is not limited to Family Based petitions! Accordingly, applicants who are otherwise eligible to acquire residency via an approved Employment Based petition and who have a Qualifying Relative Spouse or Parent will be eligible for the Expanded Provisional Waiver. This is the best thing to happen to them since the sunset of the 245-i waiver in April 2001!

  • USCIS will no longer deny a Provisional Waiver based upon them having a reason to believe another ground of inadmissibility exists. While this sounds positive, applicants must still be very cautious as the Consulate will still make the ultimate admissibility determination. If there are other grounds of inadmissibility such as fraud/misrepresentation or criminal related, an applicant would be facing a visa denial at the Consulate even if they are holding an approved Provisional Waiver.

  • Unlike the original version of Provisional Waiver, applicants will now be eligible for the Expanded Provisional Waiver even if they are subject to a final order of removal, exclusion or deportation. This is a huge change as the original Waiver precluded eligibility for anyone with such an Order and previously the general policy of the Office of Chief Counsel had been not to join in a motion to reopen proceedings where the only relief was the Provisional Waiver. Now, there will be no need to reopen proceedings! However, applicants will first need to apply for and have approved an Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212). With an approved I-212, an applicant can then seek the Expanded Provisional Waiver.

  • Applicants who might be subject to reinstatement of an old order of removal, deportation or exclusion, may now be eligible for the Expanded Provisional Waiver provided that the Department of Homeland Security has not actually reinstated the order as of yet.

  • It is important to note that the applicant will still need to establish that their Qualifying Relative will suffer Extreme Hardship if the waiver were not granted and this new rule did not alter the definition of hardship. However, in perhaps a harbinger of things to come, there is reference to the proposed guidance memorandum issued by USCIS on October 7, 2015, related to Extreme Hardship. This proposed memorandum is very much expected to bring consistency to the hardship adjudications and, hopefully, an increase in approvals.

The Expansion of the Provisional Waiver will open the door to residency for thousands of deserving individuals. While this is great news, the public must still understand that not everyone will be eligible to benefit from this change in policy. Every case turns on its own set of facts and it is essential to seek out competent, qualified and ethical legal counsel. And on that note, we look forward to see you at Youman, Madeo & Fasano, LLP.

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