Executive Action: Expansion of Provisional Waivers

At this present time individuals who are not in the possession of immigrant visas but are a spouse or a child of a U.S. citizen or permanent resident have to leave the U.S. to undertake an interview at a U.S. consulate overseas to be granted a lawful visa. Also, if any eligible person remains for more than 6 months or 1 year unlawfully in the country and tries to leave, that person will not be permitted to return for 3 years or 10 years, respectively. 

Present law does, however allow some people to qualify for a waiver to these lengthy periods of time if they can prove that the family they have left behind could be a spouse of a U.S. citizen or permanent resident or a parent.  Further to this, in 2013, the Department of Homeland and Security issued a new regulation that these lengthy periods of time overseas could be waived for certain people who were eligible. This was called a provisional waiver. At that time, those who were deemed eligible were spouses and children of U.S. citizens only. As it turned out, there was no great demand from individuals to these changes, so further alterations have been made. The provisional waiver has now been extended to  the spouses and children of lawful permanent residents and the adult children of U.S. citizens and lawful permanent residents. These changes have been made as they are in the interests of the family unit.

Despite this relaxing of the 3 and 10 year bars those eligible applicants still need to be able to prove that their absence from their relatives which could be a spouse or parent will cause them extreme hardship. USCIS has been directed to define what it means by extreme hardship.  Ordinarily, this is dependent on a number of factors such as family ties in the U.S.A., conditions in the country that the individual would be removed to, whether children would join them there, etc.  The age of the relatives left behind in the U.S. should be considered as well along with their period of U.S. residence and other conditions such as medical, mental, educational and financial hardships if the eligible person was outside the U.S. for a long period of time.

Defining "extreme hardship" is one directive under this Executive Action memo, but even more significant is that USCIS is being directed to actually define by what factors USCIS may presume hardship. If an applicant can show these factors, the burden of proof will be sharply reduced, making it much easier to qualify for the I-601A.

The filing or approval of an application for a provisional waiver DOES NOT give you any lawful status in the United States or protect you from being placed in removal proceedings.  

Also, the provisional waiver ONLY waives unlawful presence; it does not waive any other grounds of inadmissibility.  Therefore, do not apply for the provisional waiver if the government will find you inadmissible for other things, such as criminal convictions or prior immigration fraud.  USCIS will reject your provisional waiver application if they believe there are other grounds of inadmissibility besides just unlawful presence in your case.

Migration issues such as these are complicated and are often difficult to understand especially when revisions are constantly made depending on the situation at the time in the U.S. No one wants to be away from their relatives for too long but mistakes are often made that do not fit in with current laws. If you or one of your relatives believes you are eligible for the provisional waiver program, you should wait no longer but hire an experienced immigration attorney who will advise you while keeping your situation confidential until you have collectively worked out a suitable decision.

Return to Executive Action or read the FAQ for updated info.