On August 29, 2016, things have changed for the better for many undocumented foreign nationals who are present in the United States and hope to seek lawful permanent resident status.

Historically and in general, undocumented foreign nationals present in the United States who are the spouse or child of a U.S. citizen or lawful permanent resident and who are statutorily eligible for an immigrant visa must leave the country and be interviewed at a U.S. consulate abroad in order to obtain an immigrant visa. But qualifying applicants who have been in the United States unlawfully for more than six months are then barred from returning to the United States for three or ten years after they depart (or even longer, depending on other circumstances).

The provisional unlawful presence waiver is designed for many of these people who would be subject to the three or ten-year bar but are otherwise admissible to the United States. Since 2013, USCIS has allowed certain immigrant visa applicants who are “immediate relatives” (spouses, children, or parents) of U.S. citizens to apply for a provisional unlawful presence waiver while still remaining in the United States. If approved, the applicant could then travel abroad for a consular interview and subsequently reenter the United States safely by means of the approved waiver.

When filing for a provisional unlawful presence waiver, an applicant would need to prove that he or she met certain requirements. The applicant would have to prove that he or she is at least 17 years old, he or she has an approved Form I-130 or Form I-360, he or she has a pending immigrant visa application with the Department of State, and he or she must be able to prove that refusal of that person’s admission to the United States (after a consular interview abroad) would result in “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent.

Beginning August 29^th, a new rule has been implemented that expands the scope of who may apply for a provisional unlawful presence waiver. As stated above, the provisional waiver process was previously only available to foreign nationals who had been the beneficiaries of immediate relative petitions filed by a U.S. citizen spouse or child. With the new rule in effect, the waiver will now be available to applicants who are eligible for immigrant visa processing regardless of their preference categories. That means if you have accrued unlawful presence in the United States but you have a visa petition filed on your behalf by a parent, sibling, or an employer, you may now be eligible to apply for the provisional waiver.

Still under the final rule, a foreign national will have to travel abroad in order to obtain an immigrant visa, establish that denial of admission will result in extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent, establish that his or her case warrants a favorable exercise of discretion, and meet all other regulatory requirements. Eligibility for the provisional waiver will also extend to the spouses and children who accompany or follow to join the principal foreign national. If an individual is in removal proceedings, he or she will need to have those proceedings administratively closed before seeking a waiver of unlawful presence. If an individual already has a final order of removal, deportation, or exclusion, that person then effectively executes the order by departing from the United States. There is a separate waiver process for such applicants, apart from the provisional unlawful presence waiver.

In issuing a final rule expanding the existing provisional waiver process, USCIS is also expected to update its current Policy Manual to provide further guidance on how USCIS makes an “extreme hardship” determination. USCIS has already issued a new I-601A Form for the application process, which overrides the previous form.

The attorneys at HLG believe there are still huge strides to be made in this area of law. While the provisional waiver expansion shows DHS is listening to some of the comments and requests being made nationwide by attorneys and advocates alike, there are many more changes that can be made for a more streamlined, efficient process. However, the change that went into effect on August 29^th is a step in the right direction as it opens the door for many people who were unable to apply previously.