DHS Publishes New Provisional Waiver to Help Some Families Stay Together

shutterstock_29804083Some families facing long separations from their loved ones because of U.S. immigration laws will have an easier time of it in 2013. Thanks to a new regulation from the Department of Homeland Security (DHS), immediate relatives of U.S. citizens will be able to complete part of the processing of their immigration cases without leaving the country. The “Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives” rule, often referred to as the new family unity rule, will be published tomorrow (January 3, 2013) and become effective on March 4.

DHS first proposed the change in procedure, which allows immediate relatives (parents, spouses, and children) of U.S. citizens who entered the country without permission to apply for a waiver of their unlawful entry while still in the United States, in April of 2012. The change in procedure was proposed as a solution to a growing problem—families were facing months, and in some cases, years of separation because of two conflicting provisions of U.S. immigration law.

Under the Immigration and Nationality Act (INA), a person seeking to adjust their status to lawful permanent resident must be admitted or paroled into the country if they wish to have their case decided in the U.S.  If they entered the country unlawfully, the law requires them to go to a U.S. embassy or consulate for processing of their application. Departure from the United States in many cases, however, triggers a three to ten year bar to re-entering the country, which requires a separate waiver application. Under past practice, an individual applied for the waiver after having been found inadmissible by a consular official and then had to apply to U.S. Citizenship and Immigration Services (USCIS) for a waiver.  The process was generally time consuming, inefficient, and often costly, particularly because it lengthened the amount of time families were apart.

For immediate relatives, at least, the new rule will streamline the process because they will not have to depart the U.S. until they have received notification that their waiver application has been “provisionally” approved, which means that they will be able to complete their visa processing in one step rather than two or three at the embassy.  Other applicants will continue to follow the standard process, including immediate relatives who may need other waivers for final approval of their Lawful Permanent Resident (LPR) status.

For the most part, the key provisions of the final rule remain unchanged from the proposed rule, despite pleas from many commenters to allow more people to take advantage of the new process and to clarify the rules for one of the waiver provisions (regarding proving extreme hardship to a U.S. citizen). DHS argued instead that it intends to take an incremental approach, beginning with a clearly recognizable group—immediate relatives of U.S. citizens—who are not subject to any visa limits under current law. Only after DHS assesses the effectiveness of the program for this group will it consider expanding to other groups, such as immediate relatives of LPRs or to any relative of a U.S. citizen, such as sons and daughters over the age of 21, who are eligible for a visa but are not classified as an immediate relative.

With respect to extreme hardship, which must be proved in order to obtain the waiver, DHS declined to create any regulatory criteria, arguing instead that extreme hardship is based on a totality of the circumstances that can’t be reduced to a single list of factors.

The final rule itself is quite short, but the accompanying summary and response to comments goes on for more than one hundred pages, and offers far more detail and analysis than is often seen in DHS regulations. This is a positive point, as it suggests that the regulators took public comments seriously, including concerns that the cost of the program would be overwhelming. There are detailed cost analyses, as well as projections of how many applications might be filed under the program, all of which will be useful to researchers and others studying the impact of the process.

Unfortunately, many people will still be disappointed, as the final rule doesn’t expand the categories of eligibility, at least for the time being. This is the balancing act, however, that we will continue to see throughout 2013, as the President and Congress wrestle with immigration reform legislation. Finding the sweet spot between expansive eligibility and administrative efficiency is never easy and ultimately leaves some people out in the cold. The challenge will be to continue to press for maximum coverage in all aspects of immigration reform as legislators have far more leeway than regulators to revise the immigration laws.

Tags: , , , , ,


If you enjoyed this article, subscribe now to receive more just like it.

Subscribe via RSS Feed
  • jaime calderon

    I think that this is a great idea. I have been married to my husband for 13 years & we have been tring to get his citizenship for the past 11 years . He has his TPS card but thats all & it is very costly but this is what helps to protect him for now so we will do this as long as we can . We have seen several lawyers to try & get him legal but they are all saying that he will have to go back to his country & we dont want to do that because we have two small kids & he is the back bone of our family. There is no way i could provide for our children without him . My mom has a life threatning illness so she cant help me . I just pray that there is some way that my husband that has worked so hard to buy us a house & cars & is just a all around loving husband & father can stay here in the United States & get his citizenship . Thank You for your time.

    • Naima Said

      If someone has TPS and travels on an advance parole, he can apply for a green card after entry. I have successfully adjusted clients who have re-entered the US on advance parole and unlawful presence bar did not apply to them.

  • I welcome this new Provisional Waiver change as it offers finally a solution for all parents of US Citizen who entered illegally into the United States. Also, if a husband/wife of a US Citizen is presently in removal proceedings, the Provisional Waiver can be filed with USCIS and the case can be administratively closed or terminated by joint motion with the ICE Chief Counsel. There are so many details in the new proposed rule that I am reviewing its effects on all of my clients and would gladly respond to any questions from the public. It is now time for those who have held back in filing the family petitions to finally start with the petition process as the doors for the Conditional Waiver process will open on March 4th but it only applies for approved I-130 and I-360 petitions. Happy New Year to all! Elena Maria Kareneva, Immigration Attorney, 1314 East Belt Line Road, Carrollton, Texas 75006, 972 446 8884.

    • Lucy

      Hi Maria,

      Our lawyer told us the same thing but I was confused as to what he was saying. Every where I read, it says that people presently in removal proceedings need to have their case terminated BEFORE applying the waiver. My lawyer told us that we will try to get the case terminated but that in the meantime we should apply for the waiver as soon as it became available on March 4th. I was just really confused since we have no guarantees that it will be terminated and I don’t want to lose money on the waiver fees and face a denial. We have an I-130 approved.


    • VEERA

      IF you have an approval on an 1-130, but was on a deportation removal since 1997, can this law be helpful to you now, if u file for the waiver.

  • Sharon Chang

    I may be confused about this. What happens to U.S. citizens’ ‘immediate relatives who have NOT entered the country illegally but, instead, remain patiently awaiting their turn for admission? Do they get a waiver too–or do they get pushed farther back in the line? Do they get punished for being willing to respect the laws of the country to which they hope to give their allegiance someday?

    • Rudolph Gannascoli

      If you came on a visa then you may not have to go back to your country but can adjust status in the US. Therefore there would be no need for a new regulation allowing a person to get residence here. This regulation applies to people who entered the country without inspection (EWI) and cannot adjust their residence in the US because of this. Even though many people came in the country legally they have overstayed their visas. In some cases, such as spouses of US citizens they would be allowed to adjust here, even though, like EWIs they are not here with authorization. This may be the situation you are talking about, where by overstaying the visa, not respecting the law that says they have to return after their visa time here expires, they are given an advantage.


  • James Coltrane

    This is a great idea.I have been married to my wife 4years going on 5 years in july 12 & we have been tring to get her citizenship for the past 3 years. It’s very costly and i want to protect her as long as i can. We have seen several lawyers but they all say that we have to go back to her country for 10 years and apply and we don’t want to do that because we have a little girl together. she helps my mom and my grandmother which she is very ill. But she watches me and our little 1. I have heart problems and asthma too but me our daughter and family will grieve so much without her we work so hard to get a house and get a car together and we done our tax returns together. I’ll prayed that one day she stay here in the u s & get her citizenship. toto make this happen.
    P.S for you

  • Pingback: Family Unity, 287(g) Program & SB 1070 — Top Picks of the Immigration and Refugee Blogosphere()

  • One thing that should be noted is that the legal standard for the I-601A waiver is the same as it was for an I-601 waiver under the old rule, and that is “extreme hardship.” There are decisions in immigration court cases from the Board of Immigration Appeals that define “extreme hardship” as being more than the normal hardship experienced by persons who are separated from their families. This means that simply filling out the form and submitting a brief statement claiming that the immigrant’s spouse would suffer extreme hardship is likely to lead to a denial. To maximize the chance of winning our waiver cases, a lawyer has to spend many hours over the course of multiple days working directly with clients on their cases, writing lengthy affidavits often more than 10 pages long, using expert witnesses where needed, writing legal memorandums specifically tailored to each case, and showing great attention to detail to ensure that the clients’ cases are presented in the most thorough and professional way.
    It is unfortunate, but many immigrants will be cheated and scammed and will lose thousands of dollars to unethical lawyers and non-lawyers over the next few years. Immigrants should be encouraged to hire experienced immigration lawyers with good reputations before the Immigration Service and Courts.

  • maria

    What will happened to people with approve petition, over 21 years old, overstayed in america but came here with visa? If they are going to have immigration reform, these people should be their priority.

  • karen

    This new immigration law is a good idea in my opinion, however Im a bit concerned as to if its going to affect people that is already waiting for a response on a waiver. I myself am in Ciudad Juarez, Mexico waiting for a response on my waiver I have been in Mexico since July 2012, my husbands a US citizen and before coming to my interview appointment we learned that I qualified for the Obama deffered action, but my husband didnt think a work permit was enough so we decided to go ahead and go for a residency. Our lawyer did a great job in our opinion but that wasnt enough because our case got refered for inssuficient hardship and we sent in what they were asking for, and now weve been waiting for a little bit over 2 months now and havent gotten a response back. It seems as if immigration is working super slow, whats going to happen now is this new law going to make them work slower? are they going to give priority to these new waivers?