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Provisional Waiver Expansion

The Department of Homeland Security (DHS) recently published a final rule that expands the class of those eligible to apply for a provisional waiver of inadmissibility. The waiver essentially allows certain individuals unlawfully present in the U.S. to request forgiveness of this immigration violation and avoid a three- or ten-year wait outside the U.S. while they apply for their immigrant visa at an American consulate abroad. The waiver qualifications have been expanded from U.S. citizen (USC) spouses and parents to include legal permanent resident (LPR) spouses and parents. The standard remains the same: showing that the qualifying spouse or parent (USC or LPR) would suffer extreme hardship if separated from their relative or relocated abroad while waiting out the three- or ten-year bar.

The new rule makes the provisional waiver available to all individuals who are statutorily eligible for a waiver of the unlawful presence grounds of inadmissibility, including beneficiaries of an I-140 and diversity visa lottery winners. The five major changes are: (1) clarifying that all individuals seeking the waiver must apply through USCIS — including those in removal proceedings; (2) allowing individuals to apply regardless of whether they may have additional immigration violations that affect their admissibility (those individuals will still require another waiver while abroad); (3) eliminating limitations that restricted eligibility due to consular interview scheduling; (4) allowing those with final orders of removal to apply as long as they have an approved I-212 (Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal), assuming no other bars apply; and (5) requiring that DHS actually reinstate a removal order for an individual who illegally returned to the U.S. after removal before the individual is declared ineligible for the provisional waiver. Eligibility for the provisional waiver also will extend to the spouses and children who will accompany or follow to join the principal applicant.