The New Waiver Procedure

What about the new Waiver Law?

Question: I have been married for 12 years to a U.S. Citizen, but have always been afraid to file anything. I heard that I will have to file the Waiver of the 3/10 year bar, but did not want to chance leaving the U.S. What is the current status of the new Waiver regulations?

Answer: U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. This rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship.

Question: Does this mean it will make it easier to get the Waiver?

Answer: No. Definitely not. Rather, it will change the procedure upon where the Waiver is filed and how it is adjudicated. It is just as hard as before to get the Waiver approved, so you should have it prepared professionally and support it with lots of evidence.

Question: Why is this happening now? What is the purpose of the new regulations on the Waiver of the 3/10 year bar?

Answer: “The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this proposed rule will more effectively achieve,” said USCIS Director Alejandro Mayorkas. “The current process can subject U.S. citizens to months or years of separation from family members who are waiting for their cases to be processed overseas. The proposed change will have tremendous impact on families by significantly reducing the time of separation.

USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. Once in effect, this form would be used for individuals filing an application for a provisional unlawful presence application before he or she departs the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The streamlined process would only apply to immediate relatives who are otherwise eligible for an immigrant visa based on an approved immediate relative petition.

Keep in mind that the form will be different, but the supporting documentation and declaration and evidence will all remain the same. In fact, many times, I suggest getting a hardship evaluation from a qualified psychologist.

Question: Are the regulations in effect?

Answer: The proposed process outlined above is not in effect and is not available until USCIS publishes a final rule with an effective date in the Federal Register. USCIS will consider all public comments on the proposed rule announced before publishing the final rule in the coming months. Individuals at this time should not to submit an application for a provisional unlawful presence waiver, or allow anyone to submit one on their behalf because it will be rejected.

However, the case can be started now and then submitted as soon as the regulations become final.