Many individuals without lawful status face the dilemma of remaining in the United States without immigration status or leaving the U.S. to seek a waiver of inadmissibility and incurring a 3 or 10 year bar from reentry if that waiver is not granted. New proposed USCIS regulations seek to ease this dilemma by expanding the class of individuals who are eligible for provisional or “in-country” waivers. According to the USCIS, the public has 60 days from the date of publication of the notice to comment before a ruling takes place.
Current Eligibility Requirements
As the law currently stands, only immediate relatives of U.S. citizens are currently permitted to request a provisional unlawful presence waiver while residing in the United States without status. In order for the waiver to be approved, the applicant must demonstrate that a denial of the waiver would result in extreme hardship to a qualifying U.S. citizen relative. After approval of the waiver, the immediate relative then departs the United States for their immigrant visa interview at the US Consulate.
For relatives of US Citizens or lawful permanent residents (“green card holders”), the above-described process is typically completed while the relative is outside of the United States and, in many occasions separated from their family members.
If the ruling goes into effect, spouses and parents of lawful permanent residents would be eligible to apply to for provisional waivers while remaining in the United States, reducing the amount of time spent outside of the United States and away from loved ones.
Next Steps Concerning the EB-5 Program
The initial notice gives instructions for supplying comments. Only upon a final ruling do the changes take effect. When the final rule is published, a date will be listed as the start date whereby foreign nationals can apply for provisional unlawful presence waivers. Until that time, foreign nationals should wait to submit such an application. The USCIS is at its discretion to deny applications filed before the effective date posted on the final ruling.
An experienced attorney can advise and assist individuals interested in applying for a provisional waiver. Changes like these, can affect dramatically, the eligibility of many people for immigration relief. The attorneys at David Hirson & Partners, LLP have over 35 years of experience in immigration law and help clients understand the intricacies of the provisional waiver program. Contact an attorney at 949.383.5358 for a complimentary confidential consultation and learn how to legalize the status of your loved ones.