Important Changes to Provisional Unlawful Presence Waiver

By Attorneys Devin M. Connolly & Nancy E. Miller 

The Provisional Unlawful Presence Waiver became a reality in 2013.  Many people have already benefited and experienced a positive change in their lives because of it.  Recent changes mean that even more people will be eligible for the waiver.  But before we discuss the changes, let’s first review how the waiver works. 
Intending immigrants complete the processing for their green cards either in the United States through adjustment or status or in their home country through consular processing.  In order to qualify for adjustment of status, the immigrant must have entered the United States with inspection, not violated the status on which they were admitted or paroled and still be in status at the time of submission of the adjustment application.  Immediate relatives (parents, spouses and children of U.S. citizens) need only have been inspected for admission or parole to qualify for adjustment.  Immigrants who are grandfathered under 245(i) may also adjust status.
All others must consular process.  Consular processing can be problematic.  Once the immigrant is out of status, he begins to incur unlawful presence.  Unlawful presence for between 180 – 364 days carries a 3 year bar.  Unlawful presence for a year or more incurs a 10 year bar.  This bar becomes effective immediately upon the immigrant’s exit from the United States.  Therefore, when the immigrant leaves the U.S. to consular process, he finds that he is barred from returning for 3-10 years.  Historically, the waiver for that bar had to be applied for after one had left the U.S.  
However, since March 4, 2013, many people who would have had to depart the U.S. not knowing how long they would be separated from their loved ones, have been able to apply for a provisional unlawful presence waiver.  The provisional waiver is adjudicated before the alien leaves the U.S. for the consular interview.  The immigrant leaves the U.S. for the consular interview knowing that the waiver for unlawful presence has already been granted.  Thus, they have a reasonable expectation that their time outside the United States will be a matter of weeks rather than months or potentially even years.
Before the provisional unlawful presence waiver, many immigrants faced an incredibly difficult decision – remain in the United States illegally or leave the United States to apply for their immigrant visa and a waiver their unlawful presence at the U.S. Embassy in their home country.  These immigrants knew that departing the U.S. carried with it the possibility that their waiver could be denied and they could be forced to remain outside the United States for 10 years.   Even for those granted the waiver, the time outside the United States waiting for the decision could be 6 months or a year.  That is a long time to be separated from a loving spouse, an elderly parent or a young child.  However, the provisional unlawful presence waiver eliminates this risk by allowing prospective immigrants to obtain their unlawful presence waiver within the United States.  

The provisional waiver only waives the unlawful presence ground of inadmissibility.  Waivers for all other potential grounds must still be sought outside the U.S.  Until recently, CIS had been very conservative in its view of other inadmissibility grounds.  If the slightest suspicion existed that one might be inadmissible based on a ground other than unlawful presence, the provisional waiver was denied on the basis that the officer had a “reason to believe” he might be inadmissible under another ground.  

Fortunately, the U.S. Citizenship and Immigration Service changed that policy in a memorandum issued on January 24, 2014.  The memorandum instructs the adjudicating officer to review the applicant’s record in its entirety.  If it appears that the applicant’s criminal offense falls within the “petty offense” or “youthful offender” exception, or is not a “crime involving moral turpitude,” the officer should not find a reason to believe that the applicant may be inadmissible based on criminal grounds.  In short, the immigrant’s waiver may still be granted despite their criminal history if they meet all other requirements.  This is a very exciting change.  It opens the door for the provisional waiver to many who would not have qualified before.  In fact, it allows those who were denied the waiver under a “reason to believe” ground to apply for the waiver again.  

The changes to the provisional unlawful presence waiver are poised to help many people.  Any person who thinks they may benefit from this change is encouraged to consult an experienced and knowledgeable immigration lawyer about this wonderful path to legal status without significant separation from family.