On July 29, 2016, the USCIS finally published their FINAL rule expanding eligibility for a provisional waiver of the 3\10 year bar. The rule went into effect on Aug. 29, 2016.
The expanded provisional waiver “expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility.” This could include people who have a spouse or parent who is a green card holder. (The original provisional waiver allowed only immediate relatives of U.S. citizens [spouse, parents, and child] to apply for a provisional waiver of the 3/10 year bar, provided they demonstrate “extreme hardship” on a US citizen parent or spouse.). Upon approval of the waiver, they can depart for immigrant visa processing at the U.S. Embassy in their home country.
The new rule expands eligibility for the provisional waiver in several ways:
- Not only are immediate relatives of US citizens eligible for a provisional waiver, but also all other family and employment based categories\petitions, provided the person has an approved petition with a current priority date (whether a family or employment petition) and a spouse or parent who is a US citizen or green card holder.
- A person can now demonstrate “extreme hardship” not only on a US citizen parent or spouse, but also on an immigrant (LPR) spouse or parent.
A provisional waiver could benefit people who are ineligible to adjust status in the US, such as:
- Crewman (or jump ships), who do not have the benefit of Section 245(i);
- People who entered the U.S. without inspection (EWI), but do not have the benefit of Section 245(i) or a close family member who is on active duty or US veteran;
- People who entered the U.S. on a K-1 fiancée visa, but did not marry the US citizen who petitioned them, but instead married a different US citizen, or have another avenue for a green card, such as an approved employment based petition; and\or
- People who are out of status, do not have the benefit of Section 245(i), and no “immediate relative” spouse or parent. Instead, they may have a spouse or parent who is a green card holder.
In all these cases, the person is ordinarily not eligible to receive a green card (adjust status) in the U.S., but instead must go back to their home country and apply for an immigrant visa at the US Embassy, which could trigger the 3/10 year bar. The purpose of this regulation is to shorten the amount of time these people are separated from their family members, while they process their immigrant visas overseas at the Embassy.
However, before you jump on a plane for your home country, here are some FAQ’s about this regulation:
- What is the 3/10 year bar?
The 3/10 year bar is a law, which basically states that anyone who is out of status in the U.S. for more than 180 days, but less than a year, and then departs the U.S., is barred from returning to the US for 3 years. Anyone who had been out of status for more than one year, and then departs is barred from returning for 10 years. This 3/10 year bar is triggered only when the alien departs the U.S.
- Who was eligible under the original\existing “provisional waiver” process?
The only family members eligible for the original provisional waiver were immediate relatives (spouse, parent, or minor child) of a U.S. citizen, and only where a U.S. citizen parent or spouse would suffer extreme hardship.
- Who is eligible under the new expanded provisional waiver process?
In addition to “immediate relatives,” a petition by an LPR (green card holder) relative or even an employer would also qualify, where the “qualifying relative” is a US citizen OR LPR spouse or parent. For example, if you have a USC child and an LPR spouse or parent, you could be petitioned by your USC child (which is faster), and qualify for an expanded provisional waiver by demonstrating extreme hardship on your LPR spouse or parent. Similarly, if you were petitioned by an employer and have an LPR parent, you could also qualify for the provisional waiver, by obtaining your immigrant visa through your employer’s petition and by demonstrating extreme hardship on your LPR parent.
- What are the benefits of the “provisional waiver” program?
This procedure would allow qualified aliens, with a U.S. citizen or LPR parent or spouse, to apply for a waiver of the 3/10 year bar, while still in the U.S., and before they depart the U.S. for immigrant visa processing overseas. If the waiver is granted, they would then depart the U.S. (with the approved waiver in hand), to be processed for their immigrant visa and return to the US as a green card holder!
- Would this provisional waiver process apply to other immigration violations or grounds of inadmissibility?
No. This provisional waiver applies only to violations of the 3/10 year bar. If a person has other immigration violations, such as fraud (assumed name entry), criminal convictions, and the like, he or she is not eligible for a provisional waiver and would have to apply for all such waivers outside the U.S.
- If I’mbeing petitioned as an immediate relative, do I really need to depart the U.S.?
In many cases, people being petitioned as an “immediate relative” can still adjust status (obtain their green card), in the U.S. even if they are out of status, worked without authorization, or do not have the benefit of Section 245(i). If a person is eligible to adjust status in the U.S., they should not even think of departing the U.S., and, therefore, trigger the 3/10 year bar. See an attorney, who can determine if you even need to depart the US to obtain your green card. Maybe you don’t need to.
- Are there any people who could benefit from the new expanded “provisional waiver” process?
There are several categories of aliens who are not eligible to adjust status in the U.S., even if petitioned by a U.S. citizen as an immediate relative. These include: (a) crewman (jump ship) without Section 245(i); (b) someone who entered the U.S. without inspection (EWI), such as snuck across the border, and does not have the benefit of Section 245(i); (c) a person who entered the U.S. on a K-1 fiancée visa, but did not marry the US citizen who filed the K-1 petition, but married a different UIS citizen instead or was petitioned by an employer, and the like. So this regulation could possibly benefit them, if they have no other immigration violations, such as fraud, misrepresentation, etc.
In conclusion, if you think this new expanded provisional waiver could benefit you, you should definitely seek the advice of a reputable attorney, who can evaluate your circumstances and status, determine your eligibility for a provisional waiver, and assist in preparing and processing this provisional waiver application. As you can see, only certain people would be eligible for this provisional waiver.
This article was written by Attorney Michael J. Gurfinkel. For more information, please call their toll free number at 1-866-GURFINKEL (1-866-487-3465), or follow them on Facebook.com/GurfinkelLaw and Twitter @GurfinkelLaw, or visit their website at www.gurfinkel.com.