How New Guidance Improves a Waiver Program to Limit Family Separations

9237786653_e0ca751cc7_kWhen President Obama announced his executive actions on immigration in November, much of the focus was on the new temporary immigration protections, namely the deferred action programs (called DACA and DAPA). Of all of the announced reforms, DACA and DAPA certainly will affect the greatest number of people, with potentially 5 million individuals eligible to apply. But other administrative actions, particularly those directed at improving the way we process immigration benefits, though smaller in reach, have the potential to remove obstacles to obtaining legal permanent status in the United States. Significant among these is the administration’s decision to expand the “provisional waiver” process.

The provisional waiver is intended to address problems created by the three- and 10-year bars and the manner in which waivers typically have been processed. The three- and 10-year bars are grounds of inadmissibility which apply to noncitizens who are unlawfully present in the United States for longer than 180 days. Someone who lived here unlawfully for more than 180 days is barred from being admitted to the United States for three years, and a person who lived here unlawfully for one year or more is barred from being admitted to the United States for 10 years.

Recognizing the severity this penalty creates for those with close family in the United States, Congress created a waiver for the admissibility bar where a person’s absence from the United States would cause “extreme hardship” to a spouse or parent who is a U.S. citizen or lawful permanent resident. As a result, many unauthorized family members of U.S. citizens and lawful permanent residents could become permanent residents themselves if they left the United States, requested and obtained the waiver and then applied for an immigrant visa through a U.S. consulate abroad.

Unfortunately, this process has not worked as it was intended. For one thing, the waiver process is uncertain, since upon departure from the United States, the person has no way of knowing whether and when the waiver and visa application will be approved. Moreover, the process is severely backlogged and can take years, during which time the individual is separated from his or her family in the United States.

In 2013, U.S. Citizenship and Immigration Services (USCIS) adopted regulations allowing spouses, minor children, and parents of U.S. citizens to apply for the waiver from within the United States and then travel abroad for consular processing after USCIS provisionally granted the waiver. These changes significantly reduced the time that family members had to remain outside the country and provided more confidence that they would be able to return. Under the new guidance announced on November 20, USCIS is directed to adopt a new regulation expanding the family members eligible for the provisional waiver process to include adult children of U.S citizens and LPRs and spouses and minor children of LPRs. There is no deadline for the adoption of these new regulations.

Families should not have to fear potentially being separated for years while waiting on waivers and paperwork, so this guidance to begin the waiver process while immigrants are still in the U.S. is a common sense measure to start modernizing how the Department of Homeland Security handles legal immigration cases. But it is only one temporary step in the right direction; a more permanent solution will still have to come from Congress.

Photo by Dan Moyle.

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  • iKt

    How about those already subject to the 10 year bar and is out of the country separated from their US family?

    • randelius

      No. That would be the regular waiver. The provisional waiver is for those in the country.

    • You use the I-601 or the I-121 if they have an order of deportation. Sometimes both.

  • Kelly

    Will this help someone who applied for their green card and was sent to Juarez for a “final” interview and then given a 10 year bar because they had been stopped at the border and the entered the US?

    • randelius

      No. The provisional waiver only waives unlawful presence, not Entry Without Inspection.

  • Only1234

    So this would apply to a spouse married to a green card holder that is still leaving in USA for 10 years? This person came thru mexico when he was 17 went to court and they let him stay thru the process but was supposed to leave voluntary after the last court but he never left. After that he got married to a green card holder for the past 7 years and has 1 kid together

    • He would have to have his removal proceedings reopened because event if he was given voluntary departure that is still considered an order of removal from the immigration judge. He needs to fix that deportation order before he can apply for the provisional waiver.

  • lhg

    What about those who entered falsely claiming to be us citizen and this happened more than 10years ago???

    • Guest

      It might apply to provide a benefit to that alien because the false USC bar applies to those seeking adjustment of status (i.,e the green card) DAPA and DACA do not provide that benefit. However, since this benefit is discretionary, the false claim might be considered a negative discretionary factor even if it is not a statutory bar.

    • The Provisional Waiver is not for fraud cases you would need the I-601. However the only way to apply for the I-601 is if you are adjusting inside the US or if you want to risk the wait abroad while you apply. However if the false claim was that the person is a U.S. citizen there is no waiver for that. Falsely claiming to be a U.S. citizen is a permanent bar without ability to remedy the issue.

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