On July 14, 2015, USCIS published a proposed rule which aims to expand the provisional waiver program. The pilot provisional waiver program started in 2013 allowed immediate relatives (parents, spouses, and unmarried children under 21 years old of United States citizens) to apply for a waiver of their unlawful presence before applying for an immigrant visa abroad. Under the proposed rule, provisional waiver will be available to all immigrants and expand qualifying relatives to cover both USC and LPR parents and spouses.
The current provisional waiver allows applicants to apply for the waiver of 3 or 10-year unlawful presence bars without having to first leave the country. It significantly reduced the risk of not being able to return to the US after an unsuccessful visa interview. It also shrank family separation times resulting from having to wait abroad for the approval of the regular waiver. The proposed rule will expand eligibility for a provisional waiver to include beneficiaries of all family-based and employment-based petitions as well as diversity visa program selectees. More importantly, the new rule includes both LPR and USC parents and spouses to group of qualifying relatives for the purpose of demonstrating extreme hardship.
This proposed rule is a welcome step in the right direction by the USCIS making the provisional waiver available to many more immigrants. However, it is not yet a final rule and it still requires the applicant to show that a qualifying relative will suffer extreme hardship, which is a high standard that is difficult to meet. An experienced immigration attorney should be consulted to prepare the waiver application and supporting documents to ensure the highest chance of approval.
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