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USCIS Proposal to Expand Provisional Waiver Program

USCIS has published proposed rules that would expand the provisional waiver process. The provisional waiver program allows foreign nationals who are eligible to apply for their green cards, but who are required to obtain a waiver of inadmissibility for having unlawful presence in the U.S., to file that application from within the U.S. rather than from abroad while awaiting approval of their visa at a U.S. consulate. In order to obtain a waiver, applicants must demonstrate “extreme hardship” to a qualifying relative. The proposals make two significant changes: First, USCIS proposes expanding the provisional waiver program to allow other immigrant visa applicants access to it. This means that all other beneficiaries of family-based petitions may apply for the waiver – currently only immediate relatives (spouses, children, and parents of U.S. citizens) can use the program – and it would also allow access to beneficiaries of approved employment-based petitions, diversity visa applicants, and certain “special immigrants,” as well as access to the derivative spouse and children in the above categories.

The second way that the USCIS proposes to expand the program is to allow LPR parents and spouses to be “qualifying relatives.” At the present time, only U.S. citizen parents and spouses are considered qualifying relatives.

The provisional waivers process was first implemented in March 2013. Final rules are expected to be released in conjunction with USCIS’s final policy on extreme hardship, discussed above.