As we explained in our latest blog post, on July 29th, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a great opportunity for immigrants who need an unlawful presence waiver and also have a spouse or parent who is a U.S. citizen or Lawful Permanent Resident (green card holders). The change expands the provisional waiver program, making it available to more family members and benefitting by reducing family separation for at least half a million immigrants over the next 10 years.
Before the new rule took effect, immigrants needing an unlawful presence waiver were able to participate in the provisional stateside waiver only if they were immediate relatives of U.S. citizens. With the expansion of the provisional waiver, immigrants that are eligible for green cards through employment based petitions, diversity visas, and an applicant with approved I-360s now can apply for a provisional waiver if they have a U.S. citizen or Lawful Permanent Resident parent or spouse and they can demonstrate that the parent or spouse will suffer extreme hardship if the applicant is unable to remain in the U.S. In addition, they can stay in the U.S. while the waiver is processed.
What does this mean for you and your family? We decided to explain further what this new immigration rule means to help clarify the expansion of the program and eligibility and how it may affect you.
What is the importance of the provisional waiver?
The expansion of the provisional waiver is important because before the rule changed most individuals who needed an unlawful presence waiver (because they were present in the U.S. without status for more than 180 days but less than a year or one year or more) had to return to their home country to ask for a waiver of unlawful presence when they applied to become lawful permanent residents. It was very difficult for applicants because they had to travel to and apply for the waiver from their home country. Applicants would be stuck in their country, for weeks or months or even years, waiting for an answer. If the waiver was denied, those individuals would have to wait 10 years in their home country before they could return to their families in the U.S. This caused many people to make the decision to not take the risk.
The expansion of the waiver allows applicants for lawful permanent residence who require a waiver to apply for the waiver from within the U.S. if they can show extreme hardship to a qualifying relative, a U.S. citizen or Lawful Permanent Resident spouse or parent. This is expected to give many more individuals the courage to apply for the waiver.
Why is it called provisional waiver?
It is called a provisional waiver because this waiver can be approved while the beneficiaries remain in the U.S. They must still conclude the process with an interview at a U.S. Embassy or Consulate in their home country, but they will be able to stay in the U.S. while they await an answer on their waiver application.
- First, the applicant is informed that their waiver is approved.
- Next they are given an appointment at the U.S. Embassy or Consulate in their home country. They will have to take a medical exam and be asked questions about their immigration history, criminal history as well as other questions that determine if they are eligible to become Lawful Permanent Residents.
- In most cases if there are no surprises, the applicant will be abroad for only a few days or longer before returning to the U.S. with their residency.
This is an improvement over the previous process, which required that the applicants leave for their home country before applying for the waiver and remain there while they await an answer on their waiver application.
What are the changes of the provisional waiver program?
Previously, only immediate relatives of U.S. citizens were able to apply for the provisional waiver program (spouses, parents, children). With this expansion, people who are also beneficiaries of petitions filed by Lawful Permanent Residents (green card holders) and anyone with a qualifying relative can now can apply for the provisional waiver and complete their application process. Moreover, employment-based applications, diversity visas and approved I-360s, can potentially for a provisional waiver.
What are the requirements for filing the provisional waiver?
The applicant is physically present in the U.S. The applicant must also show that the refusal of the waiver would cause “extreme hardship” to their U.S. citizen or Legal Permanent Resident spouse or parent. The applicant must also show that they warrant the favorable exercise of discretion.
Can I apply for the provisional waiver if I have another reason of inadmissibility?
No, you can’t. The expansion of the provisional waiver is given to applicants whose only ground of inadmissibility is unlawful presence. Immigrants with other grounds of inadmissibility, including fraud, criminal conduct, among others, are not eligible for the stateside waiver program. You might be able to apply for residency in conjunction with other waivers. Speak to an attorney if you have any criminal or immigration issues beyond unlawful presence.
When does this new rule come into effect?
The expansion of the provisional waiver program came into effect on August 29th, 2016.
How much does the waiver cost?
The waiver will cost $585 plus a biometrics fee of $85 for individual under 79.
I think I qualify for this new rule, what should I do next?
The best way to find out if you or your family member is eligible is to contact an experienced immigration attorney. You can contact us online, via email at firstname.lastname@example.org or call us at (713) 861-2725 to receive a free consultation with FValdezLaw PC via phone, email or Skype.