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DHS Proposes Expansion of Provisional Waiver Program

On July 14th, the Homeland Security Secretary issued a proposed expansion of the provisional waiver for unlawful presence rule. This will be published in the Federal Register for publication and comments. The proposal suggests two changes to the current provisional waiver regulation.

First, the proposed rule seeks to expand the provisional waiver to all that otherwise qualify for an immigrant visa but require the waiver of unlawful presence. This would expand the restriction that only immediate relatives can apply for the provisional waiver.

Second, the proposed rule seeks to expand the qualifying relatives who can demonstrate extreme hardship should their relative not be permitted to immigrate to the United States. Currently, only United States citizens suffering extreme hardship qualify. Under the new rule, United States citizens and lawful permanent residents would be permitted to demonstrate extreme hardship.

Before the provisional waiver regulation was implemented, those here in the United States who accrued unlawful presence and wishing to adjust their status to lawful permanent resident based on a family-based immigrant visa, were required to return to their country and consular process, thus in most cases, triggering a three or ten year bar to adjustment of status. The waiver of unlawful presence would then be required and if denied, the individual would not be permitted to return to the United States.

When the provisional waiver regulation was implemented, those individuals were permitted to apply for the waiver while still inside the United States. If granted, the individual could then travel to his or her country with the waiver already approved, and safely consular process.

This proposed rule seeks to expand the reach of the provisional waiver so more individuals can take advantage of the waiver process and families can be kept together.

For a full text of the proposal, click here.

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