On 7/29/16, the USCIS announced the release of the final rule on the “Expansion of Provisional Unlawful Presence Waivers of Inadmissibility”. This rule expands the class of individuals who may be eligible for a provisional waiver of unlawful presence ground of inadmissibility and takes effect on 8/29/2016.
Before an alien who is unlawfully present in the US has to leave for his country of origin to consular process his immigrant visa petition, the provisional waiver program allows him to apply for provisional waiver and wait for its approval in the US. Without this provisional waiver, these individuals will have to apply for the waiver for the first time after their immigrant visa interviews abroad. This has discouraged a lot of aliens who are beneficiaries of immigrant visa petitions but unlawfully present in the US to process their petitions through the US Embassy or Consulate abroad. Due to the “3/10 bar” rule, they run the risk of not being able to return to the US if their waiver application is denied. This bar prohibits re-entry for three years to the US for individuals who have accumulated more six to 12 months of unlawful presence in the US. Those who have been unlawfully present in the US for more than a year are barred re-entry for 10 years.
In early 2013, the USCIS published the final rule on provisional unlawful presence waivers for certain immediate family members of U.S. citizens and who can prove extreme hardship to the US citizen spouse or parent. Immediate relatives refer to spouses, children under 21 years old and parents of US citizens. Acceptance of the provisional unlawful presence waivers started last 3/4/2013.
The final rule on expansion of the provisional waiver no longer limits the program only to immediate relatives of U.S. citizens provided they can show that denial of admission will result in extreme hardship to a U.S. citizen spouse or parent. Instead, all individuals who are beneficiaries of approved immigrant visa petitions statutorily eligible for a waiver of the unlawful presence grounds of inadmissibility can apply for provisional waiver. Like the first provisional waiver program, these aliens must still go back to their country of origin to obtain an immigrant visa after their provisional waiver application is approved in the US. It should also be noted that per the USCIS, “eligibility for the provisional waiver will also extend to the spouses and children who accompany or follow to join principal immigrants”.
However, the provisional waiver is limited only to those with unlawful presence inadmissibility. If the individual has other grounds of inadmissibility such as criminal grounds, health-related ground, immigration violators (fraud, misrepresentation), they are not eligible for provisional waiver.
Per the USCIS, the expanded provisional waiver is “intended to encourage eligible individuals to complete the immigrant visa process abroad, promote family unity, and improve administrative efficiency”.