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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