THE 2016 PROVISIONAL UNLAWFUL PRESENCE WAIVER RULE BROADENS BASE OF AVAILABILITY

Since 2013 some of our “Immediate Relative” clients [under 21 years of age] whose spouse or parent is a Lawful Permanent Resident or a United States citizen but who have been in the United States without lawful presence for 180 days or more have been eligible to apply for a provisional waiver of inadmissibility before they leave the United States to apply for an immigrant visa abroad. But to get the provisional waiver, they had to prove to U.S. Citizenship and Immigration Services (“USCIS”) that their US citizen or permanent resident spouse or parent would suffer extreme hardship if the inadmissible person were not allowed to live in the United States and that USCIS had to reasonably believe that they were not otherwise inadmissible (for example, for a crime, for multiple entries into the United States without permission, and so forth). Finally, the immigrant has to prove to USCIS that they warrant a favorable exercise of discretion.

Now, as of August 29, 2016, all immigrants (not just Immediate Relatives) who are here 180 days or more without lawful presence will be allowed to apply for a provisional waiver in the United States. However, now they would no longer have to satisfy USCIS that they would be “otherwise admissible.” They would still have to prove to USCIS that they warrant a favorable exercise of discretion.

There will be a new version of CIS Form I-601A Application for Provisional Waiver. There is no way to know when that new version will be available to the public before August 29, 2016. However attorneys and clients can begin immediately to gather proper evidence for the waiver application, which a very time-consuming task, as anyone who has already been through the process knows.

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