The Department of Homeland Security published a Provisional Waiver Final Rule in the Federal Register today, July 29, 2016, implementing changes to the provisional waiver (Form I-601A) program.  This finalized the proposed rule published on July 22, 2015, with several important changes based on comments received from the public.  Expanding eligibility to more people is important because getting a waiver approved before leaving the United States keeps the amount of time an applicant has to remain outside the U.S. much shorter.  Less time outside the U.S. can limit hardship to family members back in the U.S., as well as save government money required to adjudicate waiver application for applicants located abroad.

What will the final rule change about provisional waivers?

First,

This rule now allows spouses and children of permanent residents, in addition to spouses of U.S. citizens, to get waivers approved before leaving the United States to attend an immigrant visa interview.  The standard is the same for U.S. citizen-based and permanent resident-based waivers – extreme hardship.  An applicant has to prove that her relative would suffer much more than a normal relative in the situation of being faced with a potential separation of ten years from the applicant.

Second,

Applicants for employment-based immigrant visas, certain special immigrants, and the derivative family members in each category can now use provisional waivers.  This is an example:

  • Fred is a computer systems analyst. He entered the U.S. without permission in 1999, but got a work permit in 2013 and started using his computer science education.  His employer has sponsored Fred through labor certification, and now it’s Phase Three, time to apply for permanent residence.  Fred’s mom is a U.S. citizen, and depends on Fred financially as well as to help her with her medical care.  Fred will be able to apply for an immigrant visa using the approved worker petition as his legal hook, and can apply for a provisional waiver based on extreme hardship to his mother.

Third,

Even though the July 2015 proposed rule discussed a forthcoming definition of extreme hardship, the government has not supplied that clarification.  They’ve said they will not help us out by providing examples of cases that should be approved or being more specific about what extreme hardship means.  We immigration attorneys have been complaining about inconsistent government decisions interpreting that short phrase “extreme hardship.”  But the immigration service will continue deciding extreme hardship on a case-by-case basis.

Fourth,

People who had immigrant visa interviews scheduled before provisional waivers first became available in 2013 can now apply for provisional waivers.  They have removed the former restriction in that regard.

Fifth,

A small number of people who have been ordered removed (or deported or excluded) but did not depart the United States will now be able to apply for provisional waiver applications.  The conditions are that the applicant must have already obtained an approved Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212) and that the removal order cannot have been reinstated.  If the order is reinstateable, but the government has not acted to reinstate, provisional waivers are possible.  This will help some people with in absentia orders if they can show reasonable cause for having failed to attend a removal hearing.

Last but not least,

Provisional waivers will no longer be denied because the immigration service has “reason to believe” another ground of inadmissibility besides the three- or ten-year bar applies.  This change was not anticipated by the proposed rule from 2015, and will have both positive and negative consequences.

The good:

On one hand, the consular officers at U.S. consulates abroad are the ones who make final admissibility determinations anyway, so the final rule provides for a clear division of labor between the two agencies: USCIS decides whether there is enough proof of extreme hardship to approve a waiver, and the Department of State decides which inadmissibility grounds apply.  We will not have to waste time proving to the USCIS that there is no reason to believe the consulate would find an additional ground of inadmissibility.

The bad:

The problem is if an applicant does not know that the consulate will consider something to cause admissibility, gets an approved provisional waiver application, and then receives the horrible surprise of denial by the consular officer.  This has always been possible, and is what provisional waiver applicants have always been most worried about.  But without the “reason to believe” filter, incidents of surprise inadmissibility findings will surely increase.

Following are examples of people whose provisional waivers could be voided by the consular officer even if they already have approved provisional waivers:

  • Marsha came to the United States with her two children, who were two and four years old at the time. The U.S. consulate would find her subject to the ground of inadmissibility for smuggling the children.  This is true even though they are close family members.
  • Alex has been in the United States for five years on a work visa. He obtained an tourist visa many years before that and wrote on the visitor visa application that he was married because he had heard from friends that the consulate only approved visas for young men who were married.  In reality, however, Alex was single at the time he filed that application.  If Ford applies for an immigrant visa, the U.S. consulate will likely find him subject to the ground of inadmissibility for misrepresentation (or fraud).
  • Delores came to the U.S. without permission, stayed for three years, and then went back to her country of origin to see her father, who was in the hospital. She came back to the U.S. without permission three months later.  She is subject to a ten-year bar that is not waivable called the “permanent” bar.  To be eligible to apply for an immigrant visa, she will need to stay outside the U.S. for ten years first.  The provisional waiver does not change her situation.

Conclusion

This rule will help many families.  But, we urge applicants to be extremely careful before leaving the United States with an approved provisional waiver application.  It is more important than ever to be totally honest with your attorney and to work with someone you trust to fully examine your record and make sure this is a good idea for you.