Expansion of Provisional Waivers

The Department of Homeland Security just announced a new regulation that will go into effect on August 29, 2016 that expands the I-601A waiver rules.  The rule is found here.  

Up until 2013, if someone was being petitioned by a family member for permanent residence but could not complete that process from within the United States had to depart and apply at a U.S. consulate abroad.  Because of a law passed in 1996, anyone who departs the United States after having been here for more than 180 days or 1 year without status triggers a 3 or 10 year bar respectively.  Thereofore that family member who departed to apply at the consulate would need to file a waiver to be able to return before the 3 or 10 years.  This waiver took several months to be approved so familes were separated for months and sometime over a year while the paperwork was being processed since the foreign national had to wait outside the United States.  

In 2013, DHS began allowing spouses of U.S. citizens to be able to apply for the waiver while still in the United States.  This made a huge difference for two reasons: 1. The wait of the foreign national relative abroad would be very short (1-2 weeks as opposed to months or years), and 2. the foreign national left with an approval in hand as opposed to going to apply for something which also gives one great peace of mind.  However the 2013 rule was only limited to certain classes of people, mainly spouses of U.S. citizens.  This left out spouses of lawful permanent residents and those who could show extreme hardship (the standard to get the waiver approved) to a parent.  It also did not allow those who had a final order of removal/deportation to apply for provisional waivers.

The new rule which goes into effect on August 29, 2016 now allows for all those who could get a regular waiver to be able to apply for an I-601A provisional waiver.  This includes spouses of lawful permanent residents and showing hardship to parents as well.  It also allows those with a final order of removal to be able to file for provisional waivers without having to reopen their removal orders first.  This is HUGE!

Although the motivation of the administration for promulgating this rule is obvious (right before an election) we are very thankful that this rule was passed as it will help numerous families stay together.