On July 29, 2016 the Department of Homeland Security announced a final rule that expands eligibility or a provisional waiver of unlawful presence, (‘‘provisional waiver’’).  For readers who are unfamiliar with the provisional waiver, here’s a brief summary of a very complicated process and the modifications announced by DHS:

Generally, individuals who are in the United States and seeking lawful permanent resident (LPR) status must either obtain an immigrant visa abroad through what is known as ‘‘consular processing’’ with the Department of State (DOS) or apply to adjust their immigration status to that of an LPR in the United States, if eligible. Individuals present in the United States without having been inspected and admitted or paroled are typically ineligible to adjust their status in the United States. To obtain LPR status, such individuals must leave the United States for immigrant visa processing at a U.S. Embassy or consulate abroad. But because these individuals are present in the United States without having been inspected and admitted or paroled, their departures may trigger a ground of inadmissibility based on the accrual of unlawful presence in the United States.  This is so because, in 1996 President Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Among other things,  IIRIRA creates bars to admissibility for aliens who were “unlawfully present” (i.e., overstayed a visa or entered without inspection and were therefore neither admitted nor paroled).   An alien unlawfully present for more than 180 days but less than one year, and who left the United States voluntarily, is inadmissible for three years from date of departure; an alien unlawfully present for one year or more is inadmissible for ten years from the date of departure.  This provision was intended to be a deterrent to illegal immigration, but one unforeseen consequence is that undocumented immigrants became more reluctant to leave the United States voluntarily knowing they would be barred from returning for three or ten years.

Prior to the creation of the provisional waiver process in 2013, any individual who was seeking an immigrant visa and became inadmissible under the 3- or 10- year unlawful presence bar upon departure from the United States, could apply for a waiver of such inadmissibility from DHS by filing an Application for Waiver of Grounds of Inadmissibility, Form I–601, with USCIS.  To prevail, the applicant must “established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.’’  However, the application could only be filed  after having attended the consular immigrant visa interview abroad.  Those who applied for such waivers  were required to remain abroad for at least several months, often years, while USCIS adjudicated their waiver applications.  Moreover, if a waiver application were denied, the applicant would be stuck in his or her home country for up to ten years, often separated from his or her spouse or children.  For this reason, many relatives of U.S. citizens and LPRs who were eligible to obtain LPR status were nonetheless reluctant to travel abroad to seek immigrant visas and obtain such status, fearing a long wait, separation from loved ones, and a possible denial.

The provisional waiver process was initiated in 2013 and allows certain individuals who are present in the United States illegally to request a waiver of unlawful presence  before departing the United States for consular processing of their immigrant visas.

Acording to DHS, the provisional waiver process is designed to “encourage unlawfully present individuals to leave the United States, attend their immigrant visa interviews, and return to the United States legally to reunite with their U.S. citizen or lawful permanent resident (LPR) family members.”  Also, having an approved provisional waiver helps facilitate immigrant visa issuance at U.S. consulates overseas, streamlines both the waiver and the immigrant visa processes, and reduces the time that applicants are separated from their U.S. citizen or LPR family members, thus promoting family unity, the principal goal of U.S. immigrant policy.

When DHS announce the provisional waiver in 2013, certain restrictions were imposed.  Individuals were not eligible for a provisional waiver if, with some exceptions:

  • He or she were inadmissible on any ground other than unlawful presence, e.g. certain criminal convictions;
  • He or she was in removal proceedings, i.e. DHS had initiated formal proceedings to deport the individual and such proceedings have not been administratively closed;
  • He or she was not subject to a final order of removal, exclusion, or deportation; and if,
  • DOS initially acted before January 3, 2013, to schedule an immigrant visa interview for the approved immediate relative petition upon which the provisional waiver application is based.

The above restrictions, especially the second and third, eliminated many hundreds of potential applicants, leaving many families in limbo.  For example, an illegal immigrant from Honduras attempts to enter the U.S. at the Texas border, is detained by Customs and Border Protection and released with a Notice to Appear at a removal (deportation) hearing.  Fearing being deported, the Honduran travels to New York to live with relatives and fails to appear at her removal hearing.  The Immigration Judge issues an order of removal in absentia.  Years later the woman is married and has two U.S. citizen children, and would be eligible to apply for a provisional waiver, but for the restriction that says that persons subject to a final order of removal are not eligible.

The modifications announced by USCIS on July 29 include:

  1. Clarifying that all individuals seeking provisional waivers, including those in removal proceedings before the Executive Office for Immigration Review (EOIR), must file applications for provisional waivers with USCIS;
  2. Allowing individuals to apply for provisional waivers even if USCIS has a reason to believe that they may be subject to other grounds of inadmissibility;
  3. Eliminating the proposed temporal limitations that would have restricted eligibility for provisional waivers based on DOS visa interview scheduling;
  4. Allowing individuals with final orders of removal, exclusion, or deportation to be eligible for provisional waivers provided that they have already applied for, and USCIS has approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I–212; and,
  5. Clarifying that DHS must have actually reinstated a removal, deportation, or exclusion order in order for an individual who has returned to the United States unlawfully after removal to be ineligible for a provisional waiver on that basis.

In our above example, these modifications will allow the woman from Hoduras to apply for a  provisional waiver is she applies for, and USCIS approved, an Application for Permission to Reapply for Admission into the United States After Deportation or Removal, Form I-212.  For her, and the many hundreds of individuals who were subject to a final order of removal, or for whom an immigrant visa interview had already been scheduled at the time the provisional waiver rule was announced in 2013,  these modifications come as welcome relief.    These men and women,  living in the shadows, unable to get on with their lives, daily managing with a very unstable immigration situation, may now regularize their status and become permanent residents, and, eventually, if eligible, U.S. citizens.   We stress that neither the provisional waiver rule, or these recent modifications, change the law that requires the showing of extreme hardship to a U.S. citizen or LPR.  Substantively, this is not an amnesty program, but rather an extension of current regulations.  HRLealist will continue to monitor the provisional waiver program and report to our readers as USCIS sorts out the mechanics of how these modifications will be implemented.