Provisional Waiver – have to live US while out of status

Many immigrants face the issue of having to leave the United States while out of status. If they do they are barred from returning for a number of years. This causes a disruption for families, jobs, and other relationships. This is referred to as a 3/10 year bar. The 3/10 year bar is a law, which states that anyone who is out of status in the U.S. for more than 180 days, but less than a year, and then departs the US, is barred from returning for to the U.S. 3 years.

Anyone who had been out of status for more than one year, and then departs is barred from returning for 10 years. This 3/10 year bar is triggered only when the alien departs the US.

Informational Video – What is a 601-A provisional waiver?

Under current law and procedures, when a person has been found to have triggered the 3/10 year bar (by departing the US after being out of status for more than 180 days), the person must apply for a waiver (or forgiveness) at the U.S. Embassy by demonstrating certain relatives (called “qualifying relatives”) would suffer “extreme hardship” if the waiver is not granted. At present, these qualifying relatives include the person’s spouse or parent who is a U.S. citizen. A child is not considered a “qualifying relative” for purposes of evaluating the waiver or extreme hardship. However, the alien must apply for the waiver only after he or she departs the US and applies for the immigrant visa at the Embassy. In addition, the adjudication of the waiver may take weeks, months, or even years to be completed. In the meantime, the family is separated for a lengthy period of time, waiting for the waiver to be processed.

THE USCIS has now published a proposed rule expanding eligibility for a provisional waiver of the 3\10 year bar. The expanded provisional waiver will include “all aliens” statutorily eligible for the waiver. At present, only immediate relatives of US citizens (spouse, parents, and minor child) may apply for a provisional waiver of the 3/10 year bar, before they depart the US for immigrant visa processing at the US Embassy, provided they demonstrate “extreme hardship” on a US citizen spouse or parent.

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The proposed rule expands eligibility in two ways. First, other family members would now be considered eligible for the waivers. It would also be open to employment based categories. Secondly, a person can demonstrate “extreme hardship” not only on a US citizen parent or spouse, but also on an immigrant (LPR) spouse or parent. These provisions, if accepted would offer help to many people. For example, if you have a USC child and an LPR spouse, you could be petitioned by your USC child (which is faster), and qualify for a provisional waiver by demonstrating extreme hardship on your LPR spouse or parent. Similarly, if you were petitioned by an employer and have an LPR parent, you could also qualify for the provisional waiver, by demonstrating extreme hardship on your LPR parent.

There are serious benefits of this provisional waiver. This procedure would allow qualified aliens, with a US citizen or LPR parent or spouse, to apply for a waiver of the 3/10 year bar, while still in the US, and before they depart the US for immigrant visa processing overseas. If the waiver is granted, they would then depart the US (with the approved waiver in hand), and would not have to wait several months outside the US to process that 3/10 year bar waiver. However keep in mind that if the immigrant has other immigration violations such as criminal convictions, he or she would have to apply for any waivers outside the U.S.

The proposed provisional waiver could help many categories of people. Such categories of people include those not eligible to adjust status in the US, even if petitioned by a US citizen as an immediate relative. These include: (a) crewman (jump ship) without Section 245(i); (b) someone who entered the US without inspection (EWI), such as snuck across the border, and does not have the benefit of Section 245(i); (c) a person who entered the US on a K-1 fiancée visa, but did not marry the American who filed the K-1 petition, but married a different American instead, and the like. So this regulation could possibly benefit them, if they have no other immigration violations, such as fraud, misrepresentation, etc.

In many cases, people being petitioned as an “immediate relative” can still adjust status (obtain their green card), in the US even if they are out of status, worked without authorization, or do not have the benefit of Section 245(i). If a person is eligible to adjust status in the US, they should not even think of departing the US, and, therefore, trigger the 3/10 year bar. See an attorney, who can determine if you even need to depart the US to obtain your green card. Maybe you don’t need to depart. The purpose of this regulation is to shorten the amount of time these people are separated from their family members, while they process their immigrant visas overseas at the Embassy.

This new proposed waiver is exciting news because it could offer plenty of benefits for certain categories of people. As always, if you think that you belong to such a category speak to an immigration attorney. Doing so could shorten the time you are separated from your family.

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