Expansion of Provisional Unlawful Waivers

On July 29, 2016, the Department of Homeland Security announced in the Federal Register an expansion of the provisional waiver of admissibility rules, which was originally announced in 2013. The rule allows individuals who are inadmissible in the United States based on accrual of unlawful presence to seek and secure a “provisional waiver” of the ground of inadmissibility before they depart the United States for their visa. This announced expansion, which goes into effect on August 29, 2016, provides the following:

  • All individuals eligible for immigrant visa and meet the requirements for waiver can now seek provisional waiver. This will apply to all beneficiaries of approved immigrant visa petitions, including spouses of Lawful Permanent Residents, parents and adult children of United States citizens; beneficiaries of employment based petitions, etc.
  •  The reason-to-believe standard, which refers to the ability of DHS to deny a provisional waiver based on the belief that the Applicant has inadmissibility beyond unlawful presence, is eliminated under this final rule and thus will no longer play a role in adjudication of USCIS petitions;
  • DHS will allow those with final orders of removal, deportation, or exclusion to apply for provisional waivers if a previously filed I-212, Application to Reapply for Admission has been conditionally approved; DHS does not allow for the concurrent filing of provisional waivers and the I-212, Permission to Reapply for Admission Into the United States After Deportation or Removal;
  • Those applicants required to file an I-212 may do so prior to departing the US and receive a conditional approval, which becomes valid following the Applicant’s departure to attend their visa interview abroad;
  • Those individuals that are granted voluntary departure are ineligible to file a provisional waiver;
  • An individual will be ineligible for a provisional waiver if ICE or CBP, after service of notice under 8 CFR 241.8, has reinstated the removal, deportation, or exclusion order prior to the filing or while an application is pending;
  • USCIS has instructed adjudicating officers to be more specific in Requests for Evidence issued for provisional waivers to more clearly relay the noted areas of deficiency in the application;
  • Even if an Applicant’s provisional waiver application is denied, DHS will not serve them an NTA (Notice to Appear) unless they are enforcement priorities—i.e. threats to national security, border security, and public safety;
  • DHS has eliminated all filing restrictions associated with the January 3, 2013 date. Therefore, any interviews scheduled before the specific date are no longer subject to restrictions that had previously been written into law;
  • If a DOS Consular Officer determines an applicant ineligible for a visa based on grounds other than unlawful presence at a visa interview, an approved waiver will automatically be revoked.