American politicians take the stage every day demanding undocumented immigrants “stand in line” to immigrate legally. This demand, however, comes with a significant cost: many immigrant families suffer years of emotional and financial hardship while family members ‘do the right thing’ and return to their homelands to wait. This long waiting period can take anywhere from three years to ten years, depending on how many years the individual lived in the United States illegally. By Congressional rule, these “time bars” must be imposed upon those who attempt to return to the US from overseas, after living in the United States without documentation for more than 180 continuous days. Since March 2013, the provisional unlawful presence waiver process has supported family unity for many immigrants. By allowing qualified individuals to overcome the unlawful presence “time bars” before they leave the United States for a visa interview, provisional waivers have substantially reduced the separation between spouses, children, and parents of U.S. citizens who must complete the immigration process abroad. Effective August 29, the United States Citizenship and Immigration Service (USCIS) announced good news, expanding the provisional lawful presence waiver to a wider pool of potentially eligible individuals. This expansion could shorten the required absence period and encourage many undocumented individuals to finally apply for legal status in the U.S.

What has changed in the provisional waiver ‘final rules’?

Until now, only immediate relatives of U.S. citizens have been eligible to seek provisional waivers before leaving the United States. As of August 29, the provisional unlawful presence waiver process has been opened to all statutorily eligible individuals who could be given an immigrant visa and a waiver of inadmissibility to the United States. This includes spouses, sons and daughters, and parents of green card holders – a much larger pool of individuals.

Am I eligible for a provisional waiver?

If you believe you may be eligible for a provisional waiver, examine the complexities of your case with a qualified immigration lawyer. Eligibility typically includes individuals with no other barriers to immigration besides their unlawful presence in the United States. To qualify for a provisional waiver, applicants must prove why their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants cannot return to the United States. You must also:

• Be physically present in the United States to file your application
• Be 17 years of age or older
• Have an immigrant visa pending with the Department of State under a Petition for Alien Relative, a Petition for Alien Worker, or another visa program
• Be ineligible only because you have spent a period of more than 180 days in the United States without documentation

If you have been in removal proceedings recently, you will not be eligible for a provisional waiver.

Can I stay in the United States while I apply for a provisional waiver?

Eligible individuals may remain in the United States while they apply and await approval for a provisional unlawful presence waiver. Once approved, they will travel to their home country for their immigrant visa interview at a U.S. embassy or consulate. Assuming eligibility for admission to the United States, the consular o¬fficer will issue the immigrant visa and the entire absence may only be a matter of weeks.

Does a provisional waiver protect me from deportation?

A pending or even an approved provisional unlawful presence waiver does not protect applicants from removal or grant lawful status. Neither does an approved provisional waiver guarantee admission to the United States.

What constitutes ‘extreme hardship’?

To obtain a provisional waiver, the applicant must prove to USCIS why its denial would pose ‘extreme hardship’ for the U.S. citizen or permanent resident spouse or parent. UCSIS does not precisely define ‘extreme hardship’. Officers could potentially consider information such as the number of U.S. citizen or permanent residents in the immigrant applicant’s family, and the family ties and relationships outside of the United States; the stability of the country to which the U.S. citizen family member might have to relocate, and the economic impact (again, on the U.S. citizen or lawful permanent resident) caused by the applicant’s departure or by the relocation of the family. Health concerns and childcare disruption could also be a factor. USCIS will consider the totality of the hardships a separation would cause, in deciding whether to grant or deny a provisional waiver application.

Did the provisional waiver form change?

The August 29 final rule included changes to Form I-601A, the Application for Provisional Unlawful Presence Waiver. The updated form may be found at uscis.gov/i-601a. When completing the form, follow the instructions carefully and completely. We strongly recommend individuals considering a provisional waiver application meet with a qualified immigration attorney who can help them to determine their eligibility and assist them with their application. USCIS will reject any application not accompanied by appropriate filing and biometric fees or which does not meet the appropriate filing criteria. Note: Form I-601A should not be filed concurrently with any other application or petition.

How Provisional Waivers Keep Families Together

Before the implementation of the provisional waiver process in 2013, many undocumented immigrants who attempted to legitimately obtain a visa would return to their home countries for the required consular interview, only to find themselves “time-barred” once they arrived — for a matter of three years or even a decade. As many of these immigrants had married US citizens or permanent residents while in the United States, this unexpected time-bar often financially and emotionally devastated families. This fear of separation prevented most undocumented immigrants from stepping forward and seeking legal paths to residency and citizenship. The new provisional waiver rules represent the humane and responsible choice for immigrants and will encourage many undocumented aliens to take the path to legal immigration. If you believe you may be eligible for a provisional waiver, seek the counsel of a qualified immigration attorney in your area.

Ask Henry Lim

Do you have a question for Henry Lim? During over 20 years of practicing law, he has helped more than 10,000 families move to the United States. You can Ask Henry a question at henry@lim.law or submit a video question by sending a link to one of our channels. For legal assistance, email or call for an appointment: (407) 512-9919. Our first consultation is complimentary. This article is general advice and does not represent the establishment of a client-attorney relationship. For counsel specific to your circumstances, always consult a licensed lawyer.