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Unlawful Presence Update: Provisional Waiver Draft Regulations Released
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Posted On: April 10, 2012
In the past two weeks, DHS has finally put the pedal to the medal in releasing much anticipated draft regulations on the proposed provisional waiver program. If it gets enacted, the provisional waiver program would allow those with approved Immigrant Visas who have a US citizen spouse or parent who would suffer extreme hardship if the immigrant was not allowed to come back to the US in the next 3 or 10 years (depending on which bar was triggered), to apply for their waivers in the US before ever departing to their consular interview abroad. This would save bucket loads of time waiting abroad for a decision by the CIS office attached to the consulate, which could take more than 6 months in many locations and even more in Mexico. The provisional waiver process would allow the immigrant to wait in the US while the waiver is being decided and then once it’s approved, then travel to the consulate interview. This would result in only a few weeks at most of a separation from their loved ones in the US.

Well, there are a few catches. The new draft regulations make clear that:

(1) There are no do-overs. If your case is not approved through the provisional waiver program the first time, you don’t get a second shot at it. You would have to travel abroad, as under current procedure, and file for a waiver abroad and await the decision.

(2) There are no appeals to denials and no motions to reopen. Only CIS can issue an MTR on its own to reopen a case, which is not likely.

(3) As expected, permanent resident spouses and parents may not be used as qualifying relatives for purposes of the provisional waiver process; if your relative is one of these, you will have to go through the standard waiver processing that currently exists abroad;

(4) If you have an adjustment of status case pending, you can’t apply under the provisional waiver program.

(5) A Big Problem –  If you have already paid your NVC fees and NVC has booked your consulate interview (but you haven’t left the US yet because you were waiting for the PW program), you cannot stop now and postpone your interview in hopes to be able to use this process. If you have a consulate interview that has been scheduled, even if you postponed or missed it, you won’t be able to file under the provisional waiver program.

The draft regulations are open for comment for 60 days before they become final and any changes are incorporated.  Let me know your thoughts or any concerns you read about in the regs and we’ll try to get your voice heard.

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Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit


Anonymous April 25, 2012 at 7:18 am

Thank you for that informative update, I have found that many people have been confused over this provisional waivers of inadmissibility for certain immediate relatives of U.S. citizens and that there are too few people out there keeping everyone up to date.

Anonymous April 30, 2012 at 6:10 am

The proposed rule is also now open for comments and I highly recommend people comment on the inequity of not providing this proposed process for relatives of permanent residents.

Anonymous April 30, 2012 at 6:11 am

The proposed rule is also now open for comments and I highly recommend people comment on the inequity of not providing this proposed process for relatives of permanent residents.

Anonymous May 9, 2012 at 2:47 pm

I have a question about this.

I am an American citizen and I file for my husband to become legal but we are still in the process of providing documents, we are in the process of providing the documents that show that I can financially support him.
We haven’t continue with the process because we are waiting for the new waiver law to be approved.

Would he be eligible to continue the process under the new law if it is approve?

I appreciate your feedback.

Thank you!

Kelly Jones May 14, 2012 at 4:20 am

Thanks for providing the useful information
immigration attorney

Atty Heather June 11, 2012 at 5:33 pm

Remember everyone. There is no new law. The provisional waiver process is a change in procedure but it is not in effect. It also may not ever happen. Although CIS has announced that they expect the new procedure to be in effect by the end of 2012, the US House of Representatives just killed funding in the DHS Appropriations bill for the provisional waiver program. It still has to go to the Senate but if it fails there or if Obama is not re-elected in November, the potential program could die. Be careful about filing anything without talking to an immigration attorney first about your particular situation!

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