On July 29, 2016, USCIS published a new rule expanding eligibility of the provisional unlawful presence waiver (I-601a).  This is BIG NEWS to many individuals who have had family members petition for them, but then were not able to take any more steps forward in their process for fear of getting stuck outside of the country (sometimes for years) and being separated from their family members in the U.S.  Prior to this rule, only the immediate relatives of U.S. citizens were eligible to seek provisional waivers BEFORE departing the U.S., but now the ability to seek approval without having to be separated from family has been expanded to include anyone who would otherwise be eligible for the waiver, such as the spouse of a Lawful Permanent Resident.  The new rule promotes family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.  What follows is a summary of the new changes and what they mean.


What is unlawful presence, and why does it matter? Unlawful presence is defined by immigration as presence after the expiration of the period of stay authorized by the Department of Homeland Security, or any presence without being admitted or paroled.  This includes individuals who crossed the border without permission. If a person has more than 180 days of “unlawful presence” in the United States or they came in illegally, they are subject to a bar to readmission. In other words, there is a legal punishment imposed, and the person cannot apply for residency.  This is a big problem for many families.


What is a waiver, and how does it help? If an individual has this “bar” because of their unlawful presence or entry, it can be waived.  To do this, an applicant must demonstrate that the refusal of his or her admission would cause “extreme hardship” to a U.S. citizen or LPR spouse or parent.


What was the old rule? Originally, those who departed the United States to apply for an immigrant visa at a U.S. embassy or consulate and were found inadmissible based on prior unlawful presence could only apply for a waiver of inadmissibility with USCIS after a consular officer made a finding of inadmissibility at the visa interview.  In other words, the person would travel abroad and then get stuck while immigration considered the waiver application. This sometimes took years and caused much suffering for families!


What is the provisional waiver?  In 2013, in recognition of the hardships that are imposed upon American families during the lengthy separation that often accompanies the waiver process, USCIS published a final rule implementing a new “provisional” unlawful presence waiver. The provisional waiver process allows an applicant who knows he or she will be subject to the bar upon departure to apply for “provisional” approval of an unlawful presence waiver prior to departing the United States for the immigrant visa interview. Assuming there are no other eligibility or admissibility issues, an approved provisional waiver should permit a consular officer to issue an immigrant visa without undue delays.  This allowed families to stay together while USCIS processed their waiver applications.


What is the new rule, and who qualifies?  Under the 2016 rule, anyone who is statutorily eligible for an unlawful presence waiver, may apply for a provisional unlawful presence waiver, regardless of their immigrant visa classification. In other words, if the visa applicant can demonstrate extreme hardship to a U.S. citizen or LPR spouse or parent, he or she may apply for and receive a provisional waiver, whether the basis for the immigrant visa is an employment-based preference category, a family-based preference category, the diversity visa lottery, or a special immigrant classification.  This means that the provisional waiver is now available to more families.

An additional change is that under the 2016 rule an individual with a final order of removal, deportation, or exclusion may apply for a provisional waiver if he or she has filed a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, and such application has been conditionally approved.


When does the 2016 rule become effective? The 2016 is already in place! It became effective on August 29, 2016.


What should I do next?  If you think this change could be beneficial to you or someone you may know, feel free to contact our office for a new consultation at (305) 916-4800.

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