DHS Proceeds with Provisional Waiver Program
April 4, 2012

On January 9, 2012, the Department of Homeland Security (DHS) announced a plan to dramatically change the application process for unlawful presence waivers that will provide significant benefit to certain individuals ineligible to adjust status in the United States. On March 30, 2012, the DHS published the proposed regulation setting forth the specific requirements and procedures for the upcoming provisional unlawful presence waiver program.


The DHS provisional unlawful presence waiver program is designed to streamline the waiver application process so that the separation of family members is minimized. The plan will greatly benefit immediate relatives who are in the US, but are not eligible for adjustment of status. Individuals who are ineligible for adjustment of status are primarily those who entered the US as a crewman; in transit; without inspection; fiancé who did not marry the petitioning fiancé; or someone who can no longer prove how they lawfully entered the US. 
Immediate relatives who are not eligible for adjustment of status may obtain permanent residency only by departing the US and processing the immigrant visa application at a US Embassy overseas. The problem, however, is that most individuals who have been unlawfully present in the US become subject to a 3 or 10 year bar once they depart the US.
The only way for an individual to obtain an immigrant visa and return to the US before the 3 or 10 years elapses is by being granted an unlawful presence waiver. To qualify for an unlawful presence waiver, an applicant must prove that he/she has a US citizen or permanent resident spouse or parent (not child) that would suffer extreme hardship if the applicant were not allowed to return to the US before the applicable 3 or 10 years. 
The current process for an unlawful presence waiver, however, is extremely difficult and risky. The current process requires an individual to depart the US before applying for a waiver, and may take several months to years before receiving a decision. This dilemma has caused individuals to remain stuck in an unfixable problem since they cannot legalize their status within the US, and are terrified of departing the US due to the extended separation from their family and the uncertainty of knowing whether the unlawful presence waiver will be granted or denied.
The DHS provisional waiver program will greatly resolve this dilemma, as individuals will be able to apply for the unlawful presence waiver before departing the US. The individual will travel overseas to the US Embassy only after receiving an approval of a provisional waiver from the DHS. The length of time the individual will be overseas for processing of the immigrant visa will therefore be shortened to conceivably just a few weeks.
The recently released proposed regulation clarifies that the provisional waiver program will be available only to those applying for an immigrant visa under the Immediate Relative category. This category includes those petitioned by a US citizen spouse or US citizen child, as well as a US citizen parent petitioning an unmarried child under age 21. Individuals applying for an immigrant visa based on any other family-based category or an employment-based sponsorship will be required to apply for the unlawful presence waiver under the current process only.
Additionally, the provisional waiver program will be available only to those who are able to demonstrate that they have a US citizen spouse or parent who would suffer extreme hardship. It will not be available to those relying on a permanent resident spouse or parent suffering extreme hardship.
Further, the provisional waiver program will be available only if the sole reason for inadmissibility is unlawful presence. It will not be available to individuals who are inadmissible due to another reason, such as fraud, criminal conviction, or prior deportation order.
The procedure will require an individual to first obtain an approved Relative Petition and pay the visa fee with the National Visa Center. The applicant will be required to have biometrics taken. Interviews for the provisional waiver will generally not be conducted.
Of significant importance is that individuals will be able to apply for a provisional unlawful presence waiver only once. There will be no opportunity to re-apply, appeal, or seek to reconsider a denied provisional waiver application. Accordingly, individuals must ensure that they prepare the best provisional waiver application possible, as only one opportunity will be provided.
The DHS is now accepting comments from the public on the proposed regulations. The comment period will end on June 1, 2012. The DHS will then review and analyze the comments received in order to issue the final regulation implementing the provisional unlawful presence program. It is anticipated that the program will commence in early 2013.

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