The United States Citizenship and Immigration Services (USCIS) has published a new final rule that expands the class of individuals who are eligible to apply for a ‘provisional’ waiver of certain grounds of inadmissibility (Form I-601A) based on their accrual of unlawful presence in the United States. The provisional unlawful presence waiver allows certain individuals, unlawfully present in the United States, to request a provisional waiver before departing the United States for consular processing of their immigrant visas.
Previously, only spouses and sons and daughters of U.S. Citizens could apply for the waiver. The provisional waiver is beneficial because it does not require the applicant to wait until the consular interview to apply for a waiver, as in the case of the I-601 waiver. Provisional waivers also substantially reduce the time of separation between the applicant and his or her U.S. Citizen or legal permanent resident (LPR) relatives. The rule was published in order to improve efficiency and reduce the amount of time that a U.S. Citizen/LPR spouse or son or daughter is separated from his or her relatives while the relative completes the immigrant visa process.
According to the 2013 rule, spouses and sons and daughters of U.S. Citizens were eligible to apply for provisional waivers of the 3- and 10-year unlawful presence bars before departing the United States for their immigrant visa interviews. The new rule expands upon the 2013 rule extending that benefit to family members of LPRs. USCIS expects to update its Policy Manual to provide guidance on how USCIS makes “extreme hardship” determinations in the coming weeks and change the Form I-601A (Application for Provisional Unlawful Presence Waiver). Applicants should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on Aug. 29, 2016.