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Expanded provisional waivers bring new opportunities- and dangers

USCIS announced a major expansion of its provisional waiver program for immigrant visa applicants beginning August 29th. The good news- many more people will be able to apply for provisional waivers. The bad news- the provisional waivers process will be riskier, especially for those who do not get proper legal advice.

Background- what is a provisional waiver?

We provided in-depth analysis of provisional waivers here, here, and here, but, briefly, provisional waivers reduce the risk and time abroad for many immigrant visa applicants.

Foreign nationals applying for lawful permanent residency who entered the U.S. unlawfully (and often those entered legally but failed to maintain lawful status) generally must leave the country to apply for an immigrant visa at a consulate. This can be risky because those who are not granted an immigrant visa will not be able to return to the U.S. unless their problems are resolved.

Increasing the challenge is that departing the U.S. after 6 months unlawful presence triggers a 3-year bar to admission, increasing to 10 years after 1 year of unlawful presence. This means that those who depart the U.S. to apply for residency must often contend with the so-called "3/10-year bar" to return. Thankfully, this bar is waivable if the foreign national demonstrates a lawful permanent resident or United States citizen spouse or parent will suffer "extreme hardship" if the applicant must stay outside the country. This can be a relatively high standard, and by no means are all waiver applications granted.

Before the provisional waiver process began in 2013, foreign nationals subject to the 3/10-year bar had to depart, and then apply for a waiver from outside the U.S. At a minimum, this required waiting abroad while the waiver applications were reviewed. Those whose waivers were denied, however, had to wait for ten years before returning to their families.

"Provisional waiver" applicants can apply for the waiver in the U.S. and stay in the country while it is pending. If the provisional waiver is granted, they depart the U.S. and apply for the immigrant visa at the consulate. As long as no other grounds of inadmissibility arise, it is a relatively smooth and low risk process.

If the waiver application is denied, DHS has said it will not initiate removal proceedings unless the applicant is considered an enforcement priority. This means that provisional waiver applicants who are denied can still remain with their families.

As will be discussed below, it is vital to remember that provisional waivers apply only to the 3/10-year bar. There are many other bars to admission which a provisional waiver will not address.

(Again, this is huge simplification provided for context, do not rely on this summary for your own legal strategy.)

THE GOOD- HOW IS THE PROGRAM EXPANDING?

The new changes expand the provisional waiver process in a several ways including:

1. Provisional waivers are available for any family-based, employment-based or diversity visa petitions. Originally, provisional waivers were only available to beneficiaries of visa petitions filed by the spouses and parents of United States citizens.

2. USCIS will no longer deny a provisional waiver application for "reason to believe" the applicant is subject to an additional ground of inadmissibility. To be clear, provisional waivers still only apply for the 3/10 year bar. If someone is found inadmissible on another ground the provisional waiver is void, and the applicant will have to file for a new waiver of inadmissibility, if one is available.

Originally, USCIS would deny a provisional waiver based on "reason to believe" another ground of inadmissibility applied. This meant that USCIS often denied provisional waivers even when there was strong evidence that no other bars applied. Now, however, USCIS will not deny waiver applications on this ground, and applicants will have to demonstrate they are not inadmissible only to the consulate and immigration inspectors.

3. Foreign nationals with a final removal order can now file for a provisional waiver if they first get an approved I 212 application for permission to apply for admission after a deportation. This means that people with unexecuted orders of removal who cannot reopen their cases may still be able to apply for lawful permanent residency with minimal time outside the U.S.

THE BAD- WHAT ARE THE RISKS WITH THE NEW RULES?

Overall, the expanded provisional waiver eligibility is a very good thing because, properly applied, many more foreign nationals will be able to apply for residency with much less risk and time abroad. That being said, the new rules present several risks, especially for those who are not properly advised.

1. A new President can change enforcement priorities. This is a concern with many programs, but it is vital to understand that ICE will currently refrain from enforcement against provisional waiver applicants because of their policies- not because they cannot. These policies, however, ultimately come from President Obama, and can be changed with a new administration in January, 2017. Therefore, this program could become much riskier if Trump is president, especially for those with removal orders.

2. More provisional waivers will be found invalid at consulates. Again, provisional waivers apply only to the 3/10-year bars for unlawful presence, not other bars for multiple entries, fraud, crimes, and other grounds. Because USCIS will not review whether other bars apply, they will approve provisional waivers for people subject to other grounds. This means that many will leave with approved provisional waivers only to find them useless at the consulate because they are subject to an additional ground of inadmissibility. Again, people in this situation will have to remain outside the U.S. unless their issues are resolved, if they can be.

3. The rules look like they cure illegal re-entry after removal- but don't. Those who illegally re-enter the U.S. after a removal, deportation or exclusion order can be placed in reinstatement proceedings- essentially enforcing the old order without new removal proceedings. The new indicate that being subject to reinstatement proceedings by itself does not prevent a provisional waiver unless the reinstatement process has actually begun.

This suggests that someone who entered the U.S. after a removal order can simply apply for a provisional waiver- but that would be wrong. There is a permanent bar to admission for those who entered the U.S. illegally after 4/1/1997 subsequent to a removal, deportation, or exclusion order. The new rules do not change this law. Therefore, the new rules only help those who illegally reentered after a deportation or exclusion order before 4/1/1997.

This misleading rule, combined with USCIS not reviewing for other bars when processing provisional waiver applications, means that it is very likely people will apply for a provisional waiver, be approved, and then face a permanent bar to return at the consulate.

Therefore, the new rules have the potential to truly help many people. Unfortunately, they also carry some very real risks that are not immediately clear. Those who apply on their own or through untrained document preparers are going to be especially vulnerable to unseen dangers.

Bean + Lloyd, LLP is an immigration law firm in Oakland, California, emphasizing family-based immigration, removal defense, and naturalization.

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