The USCIS published a proposed rule in the Federal register on July 22, 2015 that would expand the current provisional waiver program in two significant ways. The agency is allowing the public 60 days to comment on the proposed regulatory change. The provisional waiver program is currently open only to immediate relatives who, upon leaving the United States to consular process, will trigger the three- or ten-year bar for unlawful presence. It allows these immigrant visa applicants to file for a waiver of the unlawful presence bar in the United States prior to departing if they will be found inadmissible only for the unlawful presence ground of inadmissibility. To have the provisional waiver approved, they must establish that their U.S. citizen parent or spouse will suffer extreme hardship if the waiver is not approved.
The first way that the USCIS proposes expanding the provisional waiver program is to allow other immigrant visa applicants – in addition to immediate relative – access to it. This means that all other beneficiaries of family-based petitions (Form I-130) may apply for the waiver. This would include all preference-based categories (adult or married children of U.S. citizens; siblings of U.S. citizens; and spouses and unmarried children of LPRs). It would also allow access to beneficiaries of approved employment-based petitions (Form I-140), VAWA self-petitions (Form I-360), widow(er) petitions (Form I-360), and special immigrants (Form I-360). It allows access to the derivative spouse and children in the above categories. And it also proposes expanding the program to diversity visa lottery winners. The selection of the person for the diversity visa program would be considered the functional equivalent of having an approved immigrant visa petition.
The second way that the USCIS would prose expanding the program is to allow LPR parents and spouses to be “qualifying relatives.” At the present time, only U.S. citizen parents and spouses qualify.
The USCIS limited eligibility in the current program to immediate relatives who had their interview with the consulate scheduled on or after January 3, 2013. The proposed expanded program would maintain that cut-off date for immediate relatives, even if they became eligible for the program for the first time under broader definition of “qualifying relative.” For all others, the cut-off date will be the effective date of the final regulation. Those who are scheduled for a consular interview before that date will be ineligible to apply for the provisional waiver under the proposed rule. Given the likelihood that the Service will maintain those cut-off dates in the final regulation, practitioners should counsel clients not to pay the immigrant visa fees and complete the Form DS-260 if they want to participate in the provisional waiver program. Those clients who are scheduled for an immigrant visa between now and the date of the final rule will not be able to take advantage of the expanded eligibility criteria.
The proposed rule also included certain statistical information. For the first seven months of the program in 2013, the National Benefits Center approved 64 percent of the applications it adjudicated and denied 36 percent. During fiscal year 2014, the agency’s approval rate increased to 71 percent, which it maintained for the first four months of fiscal year 2015.
Practitioners are encouraged to submit written comments on the proposed regulation by September 21, 2015. CLINIC plans to submit comments and specific objections to the cut-off dates. Comments should be sent to Laura Dawkins, Chief, Regulatory Coordination Division, Office of Policy and Strategy, USCIS, DHS, 20 Massachusetts Ave., NW, Washington, DC 20529. They may also be emailed to email@example.com. Whichever means you use, be sure to include the DHS Docket No. USCIS-2012-0003 in the correspondence