On July 29, 2016, the Department of Homeland Security published a final rule that expanded the availability of the provisional unlawful presence waiver. This waiver is available to individuals who would be eligible for a waiver under INA §212(a)(9)(B)(v). Under INA §212(a)(9)(B)(v), an individual who has accrued over 180 days of unlawful presence in the US is subject to a 3-year bar to readmission that is triggered upon departure from the US. A person who has accrued one year or more of unlawful presence is subject to a 10-year bar to readmission.

Previously, such individuals had to option of applying for a provisional waiver. To apply for a provisional waiver, an individual must first depart the US, apply for an immigrant visa at a US embassy or consulate, and be found inadmissible at the visa interview as a result of a prior unlawful presence. Thereafter, the individual must file Form I-601, Application for Waiver of Grounds of Inadmissibility. However, due to this lengthy process, families suffered extreme hardships. To alleviate these hardships, the new provisional waiver process was implemented. The new provisional waiver process allows individuals, who are aware that they will be subject to the 3 or 10 year bar, to apply for provisional approval of unlawful presence waiver prior to departing the US for the immigrant visa interview. This allows approvals for provisional waivers which permit consular officers to issue immigrant visas without undue delays - assuming there are no other admissibility issues.

Who is eligible?

Under the previous rule, provisional waivers were limited to those immigrating to the US as “immediate relatives,” of US citizens who could demonstrate extreme hardship to a US citizen spouse or parent.

Under the new rule, any individual that can demonstrate extreme hardship to a US citizen or LPR spouse or parent, may apply for and receive a provisional waiver. The basis for the immigrant visa may be an employment-based preference category, a family-based preference category, the diversity visa lottery, or a special immigrant classification.

Change in Standard of Review

The previous provision held the "reason to believe" standard. Under 8 CFR §212.7(e)(4)(i), USCIS must deny a provisional waiver application if it has “reason to believe” that the individual may be subject to a ground of inadmissibility other than unlawful presence at the time of the immigrant visa interview. This standard resulted in USCIS denying applications for individuals who were clearly not deemed inadmissible for reasons other than unlawful presence at a consular interview. Thus, USCIS eliminated the rigid "reason to believe" standard and now only considers whether extreme hardship has been established and whether the individual warrants a favorable exercise of discretion.

How will the change in standard affect the individual?

Considering this is a new regulation that is being implemented, issues will arise. Although this opens up doors to immigrants that would otherwise be barred from readmission, USCIS may still deny a provisional waiver as a matter of discretion. Basically, there may still be individuals that will be denied for "reason to believe". However, there may also be individuals that may have been denied for "reason to believe", which may be approved. At the same time, if the Department of State finds an individual ineligible for an immigrant visa or inadmissible on grounds other than unlawful presence, the approved provisional waiver will be revoked. In which case, the individual may still go about the original visa waiver process and apply for a waiver abroad, using Form I-601.

Although the new rule still requires the exercise of great discretion on part of USCIS, it still opens up new options for immigrants. Therefore, if you or your client is facing a 3-year or 10-year bar and you find that the eligibility criteria has been met, this may be an option worth exploring.