Expansion of the Provisional Waiver: Good News, But Could Be Better - David Isaacson

David Isaacson, Sept. 26, 2016- "On July 29, 2016, USCIS published in the Federal Register the final version of a previously-proposed ruleexpanding the provisional waiver program.  The new rule, Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed. Reg. 50,244, was effective August 29, 2016, so the newly expanded program is now available.

The provisional waiver program, which first began in 2013 as discussed in a previous post by this author, pertains to certain applicants for an immigrant visa who will be inadmissible under INA §212(a)(9)(B) for three or ten years following their departure from the United States due to their previous unlawful presence in the United States of more than 180 days or at least one year—who face the so-called three-year bar or ten-year bar.  These applicants, under the provisional waiver program, can use Form I-601Ato apply for and (provisionally) receive a waiver of inadmissibility under INA §212(a)(9)(B)(v), based on a showing of extreme hardship to a qualifying relative, before departing the United States to apply for an immigrant visa.  This is in contrast to the usual system of applying for a waiver on Form I-601, which in the immigrant-visa context is only possible after already leaving the United States and having one’s immigrant visa interview.

The most notable change effected by the new provisional waiver rule is a significant expansion of the set of those eligible to use the provisional waiver process. ...

... While the recent expansion of the provisional waiver is to be commended, including other waiveable grounds of inadmissibility, and allowing for definitive determinations regarding other grounds of inadmissibility before an applicant’s departure from the United States, would have made the program still better.  Perhaps these issues can be revisited in a future round of rulemaking."