Trying to figure out what the new rules on waivers mean, and whether they can help you or a family member? You’re not alone.

We’ve gotten tons of questions from clients, people on Facebook, and people who have had consultations with us.

The new rules are very complex, and so I’ve waited until I had time to read the 34-page rule, analyze it carefully and consult with those involved in shaping the final rule, before writing anything. In my view, it’s more important to give a correct answer than it is to be the first one with an answer. The wrong answer could lead to being detained by immigration authorities, being deported, or being barred from entering the U.S. for life, so it is essential to get it right.

What rule are we talking about?

It’s called “Expansion of Provisional Unlawful Presence Waivers of Inadmissibility.” It was published in the Federal Register (essentially the official newspaper of the U.S. Government) on July 29, 2016. It went into effect on August 29, 2016.

What is a Waiver and Why is it Needed?

A waiver is an application that helps you overcome a bar to getting your Green Card (or other immigration benefit). In 1997, Congress passed a law saying that anyone who stays in the U.S. without permission for more than 6 months and later leaves the U.S., is barred from re-entering the U.S. for either 3 or 10 years. This time out of status is called “Unlawful Presence.” This law made it difficult for people who entered the U.S. without inspection (passing through an immigration check point) to get a Green Card: such a person isn’t eligible to receive his Green Card inside the U.S., but once he leaves the U.S. he will be barred for 3 or 10 years. After leaving the U.S. he could apply for an I-601 “Unlawful Presence Waiver,” but only if he could show that his LPR/U.S. citizen spouse or parent would suffer Extreme Hardship. Then, he could apply for his Green Card at a U.S. Consulate abroad. However, it could take a year or two for the whole process, and if it was denied then he would be stuck outside the U.S., maybe permanently.

Immigration Application

What is a “Provisional Unlawful Presence Waiver”?

In 2013, the Department of Homeland Security introduced a new I-601AProvisional Unlawful Presence Waiver” that allowed individuals with a U.S. citizen spouse or parent to apply for the waiver inside the U.S. and wait here while the government made a decision. If the waiver was approved, the person would then travel to a U.S. Consulate abroad for an interview with the 3- or 10-year bar already waived for them. If it wasn’t approved, they could choose to continue to remain in the U.S. without permission in order to stay with their family. Certain people who were eligible for a traditional I-601 “Unlawful Presence Waiver” were not eligible for an I-601A “Provisional Unlawful Presence Waiver” under the 2013 rule. For example, individuals with a spouse or parent who only had a Green Card (not yet U.S. citizenship) were not eligible for the “Provisional Unlawful Presence Waiver.”

How is the 2016 Expanded “Provisional Unlawful Presence Waiver” different?

On July 29, 2016, the Department of Homeland Security announced that the Provisional Unlawful Presence Waiver would be expanded, starting on August 29, 2016. The new 2016 rule made the following changes:

  • People who have a spouse or parent (not child) who has a Green Card are eligible to apply;
  • People who got a deportation order but never left the country may be able to apply after completing another waiver;
  • People who have an approved Immigrant Petition (I-130, I-140 or certain I-360s) under almost any category (including by a child or sibling), AND ALSO have an LPR or US citizen spouse or parent can apply.

The following rules remained the same, even after the 2016 rule:

  • People who had a removal order or expedited removal order OR who stayed in the U.S. for more than 6 months without permission AND THEN left the U.S. and re-entered illegally are NOT eligible (there is a small exception for people who re-entered before April 1, 1997 and have not left since then)
  • People who only have a child who is a U.S. citizen or has a Green Card are still not eligible, only people who have a spouse or parent who is a U.S. citizen or has a Green Card may apply
  • People who have committed immigration fraud or certain crimes, or who have other grounds of inadmissibility, are still not eligible for a Provisional Waiver
  • People who have an in absentia removal order or did not appear at their Immigration court hearing, will still be ineligible (though there are exceptions to this rule)

What Do I Need To Do If I Have a Removal or Deportation Order?

There is a specific and complex process that must be followed carefully for anyone who has a prior removal order. If the procedure isn’t done correctly, you could be detained by immigration agents, deported from the U.S. and then be barred from re-entering. With such severe consequences, it is extremely important to find a qualified and experienced attorney to help you through the process.

What if I Received Voluntary Departure?

It is still not entirely clear what options will be available to individuals who received Voluntary Departure and then didn’t leave the United States. You should consult with an immigration attorney who is very knowledgeable about waivers to make sure you get the correct advice when more information becomes available.

What Other Changes Have Been Made?
Another big change was made to the way that the Department of Homeland Security is making decisions on waivers. In the past, if DHS had a “reason to believe” that the applicant (the person applying) might be ineligible for his Green Card for a reason other than Unlawful Presence, they would deny the waiver. Now, the U.S. Consulate will make that determination. This means that your waiver can be approved, you can travel to the U.S. Consulate for your interview and visa, and the Consular officer could find you ineligible based on another ground, like fraud or misrepresentation. If this happens, your Provisional Waiver will be automatically revoked. This change makes the process more risky, and makes it more important that you find an experienced attorney to advise you so that you can avoid the serious consequences.

Consulate General Of The United States Of America

What Else Should I know?

We welcome the new changes this new rule brings and also caution people to make decisions carefully. Choosing the right immigration lawyer to represent you in this type of case is more important than ever. The rule is very complex and there are many questions that remain regarding how the Department of Homeland Security will treat certain circumstances. It is important to find an attorney who has experience with I-601A Provisional Waivers, who understands the way this rule applies to your specific circumstances, and who can advise you of all the possible outcomes in your case. With this type of help, you can make an informed decision about what the best path is for you and your family.

Even an educated and well-meaning attorney who doesn’t understand the complexities of the rule, can permanently change your life and ruin your chances of getting a Green Card. The right attorney can reduce the risks you face, provide you with your best options and guide you through the process.

Father and daughter

How Can Immigration Advocates Help Me?

From the first consultation to the day you become a U.S. citizen, Immigration Advocates can help guide you through the process. Attorney Jill Santiago has been preparing waivers, first as a law student and then as an attorney, for more than ten years. She is an advocate for her clients, listening to their concerns, providing the information they need to make the best choice for themselves and their family, and acting as a partner throughout the process to make it as clear, predictable and successful as possible.

This area of immigration law is confusing. We do everything we can to help you understand your options, the steps you will go through, the costs, and what you can expect to happen. We understand the huge impact your immigration case has on your life, and undertake each case with great care, attention and effort. We understand that your family’s ability to stay together is on the line, and that there is nothing more important to you.

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