By: Joseph G. Cella, Esq.

August 19, 2016

Effective August 29, 2016, The Department of Homeland Security (DHS) is amending its regulations to expand eligibility for the provisional unlawful presence waivers of the three and ten-year unlawful presence bars to all aliens who are statutorily eligible for such a waiver. Although previously a successful applicant would have to have demonstrated that barring him/her from re-entry for three or ten years would result in extreme hardship to a United States citizen (USC) spouse or parent, s/he can now prevail by showing that denial of such a waiver application would result in extreme hardship to his/her USC and lawful permanent resident (LPR) spouses and parents. Additionally, applicants for employment-based immigrant visas, certain special immigrants, and the derivative family members in each category can now use provisional waivers.

Likely as significant as the expansion of “qualifying relatives”, is the aspect of the expansion which allows some people who have been ordered removed (or deported or excluded) but did not depart the United States to apply for provisional waivers, as long as the applicant:

  • Is the beneficiary of an approved eligible immigrant petition;
  • has already obtained obtained an approved Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212); and
  • His or her removal order has not been reinstated. (If the order is reinstateable, but the government has not acted to reinstate, provisional waivers are possible.)

Finally, provisional waivers will no longer be denied because the immigration service has “reason to believe” another ground of inadmissibility, besides unlawful presence, applies, which change will have both positive and negative consequences.

Having practiced immigration law for 23 years,

Joseph G. Cella is the founding attorney

of Cella & Associates, LLC, US Immigration Attorneys.

With offices in Clifton and Fort Lee, NJ, and Aventura, FL

he can be reached at 877.583.7080.

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