Certain individuals who are not eligible to adjust status in the United States can only apply to become a Lawful Permanent Resident by departing the U.S. and consular processing. Often one major hurdle for applicants is that those who have been unlawfully present in the U.S. for certain periods of time, will trigger a three or ten-year bar upon leaving the U.S. If approved, the provisional waiver allows those individuals, who only require a waiver of inadmissibility for unlawful presence, to apply for that waiver in the U.S. before leaving the U.S. to attend their interview abroad.
On August 29, 2016, the final rule expanding the unlawful presence waiver will take effect. The original provisional waiver program was established in 2013, to support family unification. Under the current provisional waiver rules, only immediate relatives of U.S. citizens are eligible to request a provisional waiver of unlawful presence. To qualify for a provisional waiver, applicants must show that their U.S. citizen spouse or parent would suffer “extreme hardship” were the waiver denied.
Under the expanded provisional waiver, an applicant who can show extreme hardship to their U.S. citizen or Lawful Permanent Resident spouse or parent may apply for the waiver. Another change is that the basis for the visa could now be an employment based preference category, a family based preference category, the diversity visa lottery, or a special immigrant classification.
The “reason to believe” standard, holding that U.S. Citizenship and Immigration Services (USCIS) must deny a provisional waiver application where it has reason to believe the applicant may be subject to a ground of inadmissibility other than unlawful presence, will be eliminated from the adjudication of the waiver. This will allow adjudicators to focus on whether the extreme hardship requirement has been met and the determination of whether the applicant warrants a favorable exercise of discretion.
Another significant change is that under the expanded waiver, applicants with administratively final orders of removal could apply for the provisional waiver where they have been granted permission to reapply for admission, prior to approval of the provisional waiver.
In the coming weeks we should also see the much anticipated guidance from USCIS about how they define the term “extreme hardship.” Until now, USCIS has not defined the term but has stated that extreme hardship is hardship beyond whet the qualifying relative would normally experience if the applicant were denied admission.
Applications for the waiver under the new standards should not be submitted until August 29, 2016, when the final rule goes into effect.