The Department of Homeland Security has issued a final rule that will expand the number of individuals who may be eligible for provisional waiver of certain grounds based on the accrual of unlawful presence in the U.S. The rule will go into effect August 29, 2016.  The new regulation provides a big procedural advantage because applicants can apply for the wavier and receive a decision within the U.S.  In contrast, previously applicants had to apply for the waiver at a U.S. consulate outside of the U.S.  If the waiver was denied, the applicant would be stuck outside the U.S.

The provisional waiver benefits spouses and parents of green card holders who entered the U.S. without documents or who have overstayed a visa and who are therefore unlawfully present in the United States.   Under the rule, such individuals may be able to request a waiver before they depart the U.S to process their immigrant visa (green card) applications abroad.   (Their unlawful presence makes them ineligible to process their green card applications from within the U.S.).  Applicants must still demonstrate the green card holding spouse or parent would suffer extreme hardship if the applicant was subsequently denied admission to the U.S. The additional, practical effect of the granting of a provisional unlawful presence waiver is to allow those eligible unlawfully present individuals to return to the U.S. more quickly and seamlessly, thereby reuniting with their families.

While regulations in 2013 provided the same benefit to immediate relatives of U.S. citizens, this final rule provides that eligibility for the provisional waiver is expanded also to spouses and parents of green card holders.  Along with the procedural advantages, we hope that this expansion will not only increase processing times and efficiencies for the Departments of State and Homeland Security, but more importantly will encourage unlawfully present individuals that are eligible for this new waiver to obtain a green card and enjoy the security that a green card provides.  Dayzad Law Offices has been advocating for this expansion and greatly welcomes this regulatory change!