On July 29, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a final rule which expands the current provisional waiver process. When the provisional waiver process was established in 2013, only immediate relatives of U.S. citizens were eligible to seek a stateside provisional waiver before departing the United States for the processing of their immigrant visas. Otherwise, the waiver was applied for and processed while the applicant was outside of the U.S. The new rule, which goes into effect on Aug. 29, 2016, will now include certain individuals who are family members of lawful permanent residents (LPRs), and who are statutorily eligible for immigrant visas, to apply for an unlawful presence waiver before leaving the U.S.
The provisional waiver process is intended to promote family unity by reducing the time that individuals are separated from their family members while they complete immigration processing abroad. To qualify for a provisional waiver, applicants must have an approved family petition and establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.
USCIS also announced it expects to update its Policy Manual to provide guidance on how USCIS makes “extreme hardship” determinations. This information should be available in the coming weeks.
Today the Department of Homeland Security (DHS) published a proposed rule change in the Federal Register to streamline and expand the provisional stateside waiver process. This is part of a multi-step immigration process for eligible individuals to become permanent residents of the United States.
The current provisional waiver process is only available to intending immigrants, now living in the United States, with a six month or longer period of unlawful presence in the US, who have spouses or parents that are United States citizens. Until three years ago, all intending immigrants had to have an interview in their own country first before applying for waivers based on prior violations of the immigration laws. This caused very long delays and lengthy separations from family members in the United States while the intending immigrant waited outside the US. The change three years ago allowed some eligible people to file a waiver only for the unlawful presence provisions prior to departing from the United States for consular processing rather than applying for a waiver abroad after the immigrant visa interview. That change enabled a more streamlined and family friendly process – thus significantly shortening the period of separation while completing the process to becoming a resident of the United States.
DHS now proposes to expand the current provisional waiver process in two ways.
First, DHS will eliminate current limitations on the provisional waiver process that restrict eligibility to certain immediate relatives of U.S. citizens. With the proposed changes, the provisional waiver process will be made available to family-sponsored immigrants, employment-based immigrants, certain special immigrants, and Diversity Visa program selectees, together with their derivative spouses and children.
Second, DHS proposes to expand the provisional waiver process by eliminating the current restriction that limits “extreme hardship” to U.S. citizen spouses or parents. Under this proposed rule, an applicant for a provisional waiver would be permitted to establish the eligibility requirement of showing extreme hardship to lawful permanent resident spouses or parents as well.
For further details on this proposed rule change go to: http://www.gpo.gov/fdsys/pkg/FR-2015-07-22/html/2015-17794.htm
Murphy Law Firm will publish more information such as the date the changes will take effect as soon as the details are announced.