Who Gets the New Immigration Provisional Waiver

By Robert L. Reeves & Joseph I. Elias

Last week’s news that certain immigrants would be able to apply for provisional unlawful presence waivers while in the United States was welcomed by many. The question now being asked is, “who can avail of this provisional waiver?” The provisional waiver is for immigrants who cannot adjust status in the United States. The vast majority who qualify will fall into three general groups.

The first group that will be significantly impacted by this provision are those immigrants who entered United States without inspection, or, those who have lost proof that they were lawfully inspected and admitted into the United States. Many immigrants enter the United States with papers but, lost their passports which document they were legally admitted. If they wish to adjust status in the United States, they have to find alternative forms of proof that they were admitted in the US. This typically means requesting the US government search its records for evidence that the immigrants were admitted. Unfortunately, when the government cannot find such evidence in its records, these immigrants are forced to return to their home country to apply for an immigrant visa and a waiver for unlawful presence. Because they cannot prove that they entered lawfully, they are considered to be unlawful border crossers. There is a limited exception that allows some people in this group to adjust status in the US under section 245(i) of the immigration act. This requires that they have been petitioned for an immigrant visa on or before certain qualifying dates commonly known as 245(i) grandfathering. Whether one is grandfathered under 245(i) requires a careful assessment by a competent immigration attorney.

The second major group of immigrants that will be helped by the provisional unlawful presence waiver is those who entered the United States as crewmen. Immigration law specifically prohibits immigrants who were admitted into the United States as crewman from adjusting status in the United States to lawful permanent resident. This prohibition exists even if the crewman is married to a US citizen or has US citizen parents or children. So, crewmen who overstayed in the United States must also depart the US and apply for an immigrant visa in their home country with an approved waiver for the unlawful presence. As in the previous group, crewmen grandfathered under 245(i) may adjust in the US. Again, this assessment must be done by a qualified lawyer.

The third group of immigrants that will be helped are those who entered on fiancé(e) visas. Fiancé(e)s cannot adjust status to lawful permanent resident unless they marry their original fiancé(e) petitioners. But, there are many who do not marry their petitioners. A classic example of this is fiancé(e)s who enter the United States and have second thoughts about marrying their petitioner, or, are unable to marry their petitioner because the petitioner has died. If these fiancé(e)s marry a different US citizen then of the one who petitioned them, or, are later petitioned by their US citizen child, they could not adjust status in the US. They too would be required to return to their home country to apply for an immigrant visa which in many instances would trigger an unlawful presence bar from returning. Consequently, they would require a waiver for the unlawful presence. Fiancé(e)s in this situation would greatly benefit from the provisional waiver. Unlike the previous groups, fiancé(e)s cannot avail of 245(i) grandfathering.

Not all immigrants in the above categories will be eligible to apply for provisional waivers in the US. Eligibility will be limited only to the spouses, children, or parents of US citizens who are immigrating as an immediate relative. The provisional waiver will also be limited to those only requiring a waiver for the 3 or 10 year bar. Once a provisional waiver is granted, the immigrant is then free to travel to the home country to apply before the US Consulate for an immigrant visa and return to the US.

The Immigration service has also stated the provisional waiver will not apply to those with waiver applications already pending. This means immigrants who are now preparing to return to their home countries to apply for these waivers should immediately consult with competent immigration attorneys to determine if they would be eligible for the provisional waiver. Timing of these applications and departure from the US are critical and must be carefully examined.

We eagerly await the publication of the implementing regulations to allow the USCIS to begin processing these provisional waivers. We hope that in the future the provisional waivers would be extended to other classes of immigrants and other waiver types. Processing provisional waivers in the United States is a smart way to efficiently and fairly administer the waiver program while remaining faithful to Congress’ priority that immigration law focus on family unification of US citizens. It will avoid the unnecessary and devastating disruption to families located in the United States caused by waiver processing overseas.