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DHS Announces the Final Rule for Expanded Provisional Waivers

Jul29
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DHS Announces the Final Rule for Expanded Provisional Waivers

The Department of Homeland Security (DHS) announced that the final rule regarding the expansion of the provisional waiver will be released tomorrow, July 29th. The final rule will become effective on August 29, 2016.

This long awaited expansion to the provisional waiver has been pending since the proposed rules were published on July 22, 2015. After over a year in the comment period, DHS has finalized the rule.

The provisional waiver allows certain individuals to apply for a waiver of his or her unlawful presence in the United States prior to leaving the country for an immigrant visa interview abroad. According to the Immigration and Nationality Act (INA), individuals who have accrued more than 180 days but less than one year of unlawful presence, who then leave the United States, will trigger a three-year bar of inadmissibility. This means that upon his or her departure, the individual would not be eligible to return to the United States with a visa for three years. INA § 212(a)(9)(B)(i). Additionally, the INA states that if an individual accrued more than one year of unlawful presence in the United States and then departs the country, he or she will trigger a ten-year bar of inadmissibility. INA §212(a)(9)(B)(II).

Prior to the implementation of the provisional waiver, individuals who triggered the three or ten-year bars were required to file their waiver application abroad and only after their visa application was denied by the consulate in his or her home country. This caused families to be separated from one another for months and sometimes even years.

The provisional waiver allows individuals to apply for the waiver prior to their departure from the United States. The ability to apply for the waiver prior to departing the United States has cut family separation time from a minimum of six months to about two weeks in ideal cases. Additionally, an applicant is able to depart the United States with an approval notice in hand, which provides significant comfort to both the applicant and their families.

Prior to the expansion of the provisional waiver, the only applicants eligible were those who were immediate relatives of United States citizens who could demonstrate extreme hardship to a U.S. citizen spouse or parent. Also, the applicant could have no other grounds inadmissibility such as convictions for crimes involving moral turpitude or past deportations.

Although applicants must still not be subject to additional grounds of inadmissibility aside from unlawful presence, eligibility now extends beyond certain immediate relatives of United States citizens to all statutorily eligible individuals, regardless of their visa classification. Additionally, applicants may now include their lawful permanent resident spouses and/or parents as qualifying relatives for the hardship requirement, whereas before, applicants were required to show that only their U.S. citizen spouse or parents would suffer extreme hardship. Further, individuals who have final orders of removal but who have an approved I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal may now also qualify, as may individuals with final orders of removal that have not be reinstated. Lastly, prior to the expansion, if an applicant was scheduled for a consular interview before January 3, 2013, he or she was ineligible to apply for the waiver. That filing restriction has been eliminated.

If you or someone you know has questions about the provisional waiver and whether or not you may qualify, please give us a call at (303) 297-9171 to speak with one of our experienced immigration attorneys.

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