USCIS Proposes Plan for Provisional Waiver Process

USCIS has finally released much anticipated draft regulations for a provisional waiver program that will decrease the amount of time families are separated from each other during the waiver application process.

Currently, immediate relatives of U.S. citizens who have accrued unlawful presence in the U.S. and leave the country may be barred from returning for up to 10 years. Waivers of the bar are available for applicants whose U.S. citizen spouses or parents would experience extreme hardship without them, but you have to leave the U.S. to apply and remain abroad while the waiver is processed. With no sense of whether the waiver will be granted by the consulate, leaving the country to apply can be frightening and emotionally strenuous: applicants often endure painful separations from their spouses and children because of the long processing times.

In the proposed new provisional waiver program, USCIS would determine eligibility and approve provisional waivers before the applicant leaves the U.S. for the immigrant visa interview. Because of the way the adjudication process is designed, individuals who receive a provisional waiver will likely be separated from their families for significantly shorter periods than is the case now. 

If the provisional waiver is denied, applicants will not be able to re-apply or file motions to reopen or reconsider, and USCIS will follow its current policy of prioritizing certain types of cases for initiation of removal proceedings. However, applicants will still be able to apply for the regular waiver under the current procedure.

The streamlined process would only apply to spouses and children of U.S. citizens who are otherwise eligible for an immigrant visa based on an approved immediate relative petition (I-130 Petition) and whose only ground of inadmissibility is unlawful presence. Applicants must also have already paid the visa processing fee, be at least 17 years old, and still be able to demonstrate that their U.S. citizen spouse or parent would suffer extreme hardship without them.

The provisional waivers will not be available to relatives of lawful permanent residents, immediate relatives that already have an application for adjustment of status pending, have been scheduled for an immigration visa interview, are not physically present in the U.S. or are subject to a final order of removal.

USCIS is currently in the stage of requesting public comments on the proposed waiver program. The 60-day comment period runs from April 2, 2012 until June 1, 2012. As part of the rulemaking process, DHS is considering how to address provisional waiver requests from individuals who are in removal proceedings. We encourage you to submit formal comments with your views and suggestions at (search for “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives” to access the proposed rule and “submit a comment” button).

NOTE: The proposed process is not yet in effect and will not be available until USCIS publishes a final rule with an effective date in the Federal Register.