The Department of Homeland Security announced an expansion to its provisional waiver program by publishing a new proposed rule in the Federal Register on July 22, 2015. We have been expecting such a change since President Obama announced his intention to expand this program on November 20, 2014.
Once finalized, what will the proposed rule to expand provisional waivers do?
Basically, this rule proposes to allow a greater number applicants to apply for waivers of the ground of inadmissibility for unlawful presence in advance of attending immigrant visa interviews at the U.S. consulates abroad. Now, not only spouses or children of U.S. citizens can apply for provisional waivers, but also spouses and children of lawful permanent residents. Another huge change is that the provisional waiver program will be open to employment-based immigrant visa applicants, certain special immigrants, and the derivative family members in each category. This 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.
That’s the short version. Now, to unpack the ideas involved:
- Who is the Applicant?
- What is the applicable Ground of Inadmissibility?
- Who is the Petitioner?
- And who is the Qualifying Relative for the waiver?
Who applies for immigrant visas?
To apply for permanent residence, an applicant has to first establish a legal basis for her application. For example, an approved family petition by a U.S. citizen spouse can form the basis for an application for permanent residence. Other legal hooks for permanent residence include an approved worker petition by a sponsoring employer, selection in the Diversity Visa program known as the green card lottery, or an approved self-petition as an Artist or Scientist or other rock star worker of extraordinary ability, or finally an approved special immigrant petition (such as for religious workers).
Only once the legal hook is established, the applicant can apply for the actual permanent residence benefit. There are two broad procedural routes: 1) adjustment of status here in the U.S., and 2) immigrant visa through a U.S. consulate abroad.
The process of applying for permanent residence through the U.S. consulates abroad is not nearly as convenient or fast for most applicants today as applying for permanent residence through the immigration service here in the U.S. So who applies for immigrant visas?
The immigration law pushes some people into this process by prohibiting them from applying for adjustment of status. If an applicant entered the U.S. without permission, she is generally not allowed to adjust status. Even if she is married to a U.S. citizen, and even if she is the only person in her family without papers, if she entered without permission, the law says she should go back to her country of origin and apply for an immigrant visa from there. There are certain exceptions to this general rule that we always, always explore because adjustment of status is so preferred. Other applicants who have to apply from abroad include employment-based applicants who have been out of status of more than 180 days. So if a company wants to sponsor someone for permanent residence, but although they entered the U.S. using a visa and worked using a work visa for some time, if they fell out of status and remained in the U.S. without status for more than 180 days, adjustment of status is not allowed.
What is the 10-Year Bar Ground of Inadmissibility?
The ten-year bar is the automatic immigration penalty for having been present in the U.S. for more than one year without permission and then departing. The three-year bar is a related penalty for having been present in the U.S. for more than 180 days (or about six months) but less than one year, and then departing.
Here are a couple of examples:
- John entered the U.S. without a visa by walking across the border from Canada at a place where border officials did not see him. He was not inspected or admitted to the U.S. John lived in the U.S. for five years after that and while he was here married someone who was born in the U.S. Then he drove back to Canada. He wants to apply for permanent residence based on his marriage. However, he is subject to the ten-year bar. This means the law says he cannot return to the U.S. for ten years.
- Megan entered the U.S. using a tourist visa on January 1, 2010. The border officials stamped her passport, and gave her 90 days to visit friends in the U.S. She stayed for three years, however, before returning to her home country. She was unlawfully present from April 1, 2010, through January 1, 2013. Because this was more than one year, Megan is subject to the ten-year bar.
- Bill came to the U.S. without a visa, and left 90 days later. He was unlawfully present for those 90 days, but was not here long enough to trigger the three- or ten-year bar.
John, from the above example, could have applied for a provisional waiver of the ten-year bar before leaving the U.S. In his application, he would have needed to prove through documents that his wife would suffer “extreme hardship” if he is not allowed to return to the U.S. for 10 whole years.
Does the provisional waiver rule apply to other grounds of inadmissibility?
Provisional waivers are still only available to waive the unlawful presence grounds of inadmissibility – the three- and ten-year bars. This means if an immigrant visa applicant is subject to additional grounds of inadmissibility they will have to attend the immigrant visa interview abroad and then apply for a waiver. They will have to stay outside the U.S. while waiting for the waiver to be decided by the immigrant visa. Following are examples of grounds of inadmissibility based on parts of the law other than unlawful presence:
- 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.
- Ford 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, Ford 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.
Immigrant visa applicants who are subject to more than one ground of inadmissibility, assuming those grounds are waivable, can only apply for a waiver after the immigrant visa interview.
Can employment-based immigrant visa applicants use the provisional waiver process?
According to the July 2015 proposed rule, more groups of people will be able to use the provisional waiver process, including family-based applicants, employment-based applicants, certain special immigrants, and diversity visa applicants. This is different from the existing provisional waiver program, which is totally limited to family-based immigrant cases.
Provisional waiver applicants under the new rule still need a family member to serve as the qualifying relative for the waiver, though. This means some cases will have both an employment-based and a family-based component. Following 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 for permanent residence, and now it’s 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.
Who can be the qualifying relative for a new provisional waiver?
A provisional waiver of the ten-year bar can be based on extreme hardship to the applicant’s U.S. citizen spouse or parent, and now with the new proposed rules, also to the applicant’s lawful permanent resident spouse or parent. This change does not require a change to the actual law because waivers under the law are already permitted based on hardship to all those people. Provisional waivers until now have been limited to the U.S. citizen family relationships, but the government says they want to extend the greater convenience and cost-savings of the program to more relationships.
The standard is the same for U.S. citizen-based and permanent resident-based waivers – extreme hardship. Applicants have to prove that their relatives would suffer much more than a normal relative in the situation of being faced with a potential separation from their relative of ten years. Proving extreme hardship is difficult. Evidence of any medical conditions, psychological conditions, family ties, professional obstacles, and country conditions, may be needed.
When will the proposed rule be finalized?
The new rule is not taking effect yet, but rather the government is accepting comments for 60 days first. After they reflect on any comments they receive, the government will publish a final rule and establish the effective date of the new program. We do not know for sure when this will happen, but it will be at least several months from now.