Excellent news for immigrants:
The Department of Homeland Security has published a new rule which broadens the relief for immigrants who are subject to the three and ten year bars. Now the applicants can file waivers if their parents or spouse are LAWFUL PERMANENT RESIDENTS, before, it was only for those whose parents or spouses were US citizens. It also expands this rule regardless of their immigrant visa classification. The immigrant visa applicant needs to demonstrate extreme hardship to a U.S. citizen or LPR spouse parent. The rule applies if the basis for the immigrant visa is an employment based preference category, a family-based preference category, the diversity lottery, or a special immigrant classification.
Many immigrants are eligible for lawful permanent residence but cannot apply because they are subject to the three and ten year bars for accruing more than 180 days of unlawful presence. The new rule has expanded the relief for applicants who are eligible to become lawful permanent residents. To apply for a waiver, the applicant needs to demonstrate that the refusal of his or her admission to the US would cause “extreme hardship” to a US citizen OR LAWFUL PERMANENT RESIDENT spouse or parent. This broadens the scope of relief and allows far more people to request the relief.
What Is a Provisional Waiver and How Is it Different from a Regular Waiver?
Prior to 2013, when the provisional waiver process was rolled out, an individual who departed the United States to apply for an immigrant visa at a U.S. embassy or consulate, and who was found inadmissible based on prior unlawful presence, could only apply for a waiver of inadmissibility by filing Form 1-601, Application for Waiver of Grounds of Inadmissibility, with USCIS, and only after a consular officer made a finding of inadmissibility at the visa interview. In 2013, in recognition of the hardships that are imposed upon American families during the lengthy separation that often accompanies the “regular” 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 3- or 10-year 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.
AILA members report that the average length of time a person must remain outside the United States to await issuance of an immigrant visa following the grant of a provisional waiver is about two weeks. Prior to the implementation of the provisional waiver process, it was not uncommon for individuals to be stuck outside the United States for many months, and sometimes years, while they awaited approval of a waiver.