The United States Citizenship and Immigration Services (USCIS) announced last July 29 the expansion of the existing provisional waiver program to include all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. The new rule, which will take effect on August 29 will benefit thousands who are not eligible to file for adjustment of status.
Before the first provisional waiver program took effect on March 4, 2013, applicants who had incurred unlawful presence in the US for more than 180 days, and were not eligible to adjust their status, had to go back to their home country to process their visa application there. They included fiances who entered on a K-1 visa but did not marry their petitioner and also crewmen and EWIs (those who entered without inspection) who were not grandfathered under Section 245(i).
Their departure from the US triggered the three or ten year bar. They were allowed to apply for a waiver of their unlawful presence but this took months, if not over a year. They had to appear first at the visa interview, wait for the denial of their visa application and then file for the unlawful presence waiver from outside the US and wait for its approval there. This discouraged many because of the risks, costs and hardship involved so instead of applying for a green card, they opted to remain undocumented.
To alleviate the hardship brought about by the lengthy family separation, the provisional waiver was introduced. It allowed them to apply for the waiver before their departure to process their immigrant visa application abroad. However, the 2013 rules only applied to immediate relatives (spouses and children of US citizens and parents of adult US citizens) who can show that their separation would cause “extreme hardship” to their US citizen spouse or parent.
The new rule would cover visa applicants who can show extreme hardship to a US citizen or lawful permanent resident spouse or parent whether their visa petition is family-based or employment-based.
The provisional waiver covers unlawful presence and no other ground of inadmissibility. The application would be made on a new form, Form I-601A Application for Provisional Unlawful Presence Waiver.
Individuals who are not eligible for the provisional waiver would still be able to apply under the old waiver procedure, i.e. depart from the US and apply for the I-601 waiver abroad.
Note that the waiver is provisional in that it would not take effect until after the applicant departs the US, appears at his visa interview and is found by the consular officer as otherwise admissible to the US. But the time that the individual would have to spend abroad would be significantly less compared to that under the old procedure.
We have recently represented a fiancée and also a crewmember and we successfully obtained their provisional waiver in only a few months. They went to Manila for their visa interview and came back with their green card after only a few weeks of stay there.