With more than 11 million unauthorized immigrants present in the United States, a significant number have family members who are US citizens or lawful permanent residents. Preserving the family unit in the United States is the reason why many opt to stay beyond their authorized period. The unauthorized immigrants who have been petitioned by US citizen or residents relatives find themselves, after many years, still without legal status because the current immigration system only limits certain individuals to qualify for adjustment of status. The non-eligibles include those who entered without inspection, fiance visa holders with new partners, as well as those who entered with crewman visas. Those petitioned in family and employment-based preference categories may adjust status only if they are in lawful status.
In 2013, the provisional waiver rules was released by the U.S. Citizenship and Immigration Services (USCIS) giving immediate relatives of US citizens who are ineligible to adjust an opportunity to obtain a provisional waiver, leave the US and get their immigrant visa at a US Embassy or consulate abroad. Upon their return, they are considered legal residents after having cured their only ground of inadmissibility, which is “unlawful presence” through approval of their provisional waiver. Unfortunately, this 2013 provisional waiver is very limited.
On July 29, 2016 USCIS announced that it is expanding the provisional waiver program. There are five changes to the provisional waiver rules.
First, more unauthorized immigrants may now apply for the provisional waiver and will have the opportunity to legalize their stay in the United States. In 2013, only those with immediate relative petitions were eligible for provisional waiver. Now, in 2016, individuals petitioned in any of the family or employment based preference categories may now apply for provisional waiver. The priority dates of these visa petitions must be current which means that there is an available visa and that the beneficiary does not have any other ground of inadmissibility other than being “out of status”. If there are other grounds of inadmissibility, such as fraud, misrepresentation or prior criminal conviction, this provisional waiver will not be applicable. Just like the 2013 provisional waiver rule, only unlawful presence is being waived.
The Second change in the rule is consideration of additional relatives who may be qualifying relatives. The rule still limits it to the spouse and parent of the applicant for the waiver. In the 2013 rule, the qualifying relative spouse or parent must be a US citizen only those with green card holder parents or spouses were excluded. This has been changed with the 2016 provisional waiver rules. For purposes of the extreme hardship requirement to qualifying relatives, the new rule now permits LPRs or green card holder parents and spouses to be considered for purposes of showing extreme hardship.
Third, besides expanding the scope of petitions covered by the provisional waiver, the new rules also allow those in removal proceedings or those with removal orders to apply for provisional waiver. There are conditions precedents that must be met such as the administrative closure of pending removal orders and the filing and approval of USCIS Form 212 for those with removal orders.
Fourth, the new rules now clearly state that USCIS may no longer use the “reason to believe” that there are other grounds of inadmissibility to deny the provisional waiver. In the 2013 rules, despite an apparent eligibility for provisional waiver USCIS nevertheless denied waiver applications based on “reason to believe.” This is now eliminated in the 2016 rules.
Lastly, the Department of State “interview schedule” bar has been eliminated. USCIS may now allow applicants to apply for provisional waiver despite having been scheduled for a visa interview prior to 2013. In eliminating this bar, there will be more applicants who may qualify for the provisional waiver.
With a few more months before the November election, these changes in provisional waiver rules, which will take effect on August 29, 2016, cannot come soon enough. Broadening the scope for this waiver means more families will be reunited. Considering, however, that this is just an executive directive of the President, the question of whether or not anyone will benefit from these changes would hinge on the question of who will win the coming November election for the Presidency. We expect the same policy to be continued by a Hillary presidency.
(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com , facebook.com/tancincolaw, or through her website www.tancinco.com)