Today the Department of Homeland Security announced the final rule for expanding the provisional waiver program.  This is a huge change that will improve the logistical nightmare that is the current waiver process. Although this doesn’t fix the problem for everyone, it is a very good start.

The provisional waiver was created by the Obama Administration in 2012 to allow people subject to the 3 and 10-year bars to apply for a waiver of inadmissibility before they leave the United States to consular process their visas.  The old way of doing things required you to leave and then apply for a waiver from outside the United States. That process often resulted in the beneficiary being stuck in their home country for months or years while waiting on the waiver decision.

That is still the process for most people, because the provisional waiver is so limited. Prior to today’s announcement you could only waive the ground of inadmissibility for having been out of status for a period of time (INA 212(a)(9)(B)) and only if your petition was a US citizen (not a permanent resident). Other grounds of inadmissibility weren’t waivable using the provisional waiver. As of August 29, 2016 (the effective date of the final rule), this is about to change.

So, what does the new rule change? Two very significant things:

1. Anyone Eligible for an Unlawful Presence Waiver Can Now File Provisionally (File Before Leaving the United States).

This move expands the ability to file the provisional waiver on Form I-601A to anyone who would be eligible for an unlawful presence waiver. So, anyone who as an approved immigrant visa (I-130, I-140, diversity, I-360) who has a spouse or parent who are US citizens or permanent residents and can show “extreme hardship” if not approved for the waiver. The beneficiary has to be physically present here in the United States when the waiver is filed.  Once it is approved, the person can consular process their visas.

However, there is no new guidance on the “Extreme Hardship” standard. It was announced at the AILA Annual Conference open forum with USCIS that they would be announcing this guidance soon. I had expected it to come with the final rule on provisional waivers, but it didn’t. Alas…

2. People With Final Orders of Removal Will Be Eligible for Provisional Waiver if They Are First Approved For Advance Permission to Return on Form I-212.

This is actually somewhat surprising but highly welcome. Currently, if you have an old order of removal you’re not allowed to apply for a waiver in advance. You have to leave the United States and take your chances on applying for permission to come back. Most people with orders of removal entered in the last ten years will need to ask for “advance permission” before applying for a new visa. “Advance permission” is filed on Form I-212. Under the old rule, a client would have to leave the country, file an I-212 and get it approved, and then apply for the waiver and get it approved. That process can literally take years with the beneficiary (think your mother or your spouse) outside the United States the whole time.

The new rule says people with final orders of removal can apply for the I-212 in the United States. Once that’s approved, they can submit provisional waivers on Form I-601A in the United States. And once that’s approved, they can consular process their visas.  This change means the time spent outside the United States could be reduced to a matter of a few weeks.

A Few Final Thoughts

I still have to read the rule a few more times, but there are a few other changes that might be significant. One is that the USCIS will no longer deny the I-601A for “reason to believe” the applicant is subject to other grounds of inadmissibility. One the one hand that’s good (because the “reason to believe” denials are sometimes based on nothing more than the officer’s hunch). On the other hand, that could be bad, because a person may end up processing their visas abroad only to find out that they do in fact have some other ground of inadmissibility and need to apply for another waiver.  I have a feeling this change might lead to more people getting stuck outside the United States, especially those who file without a competent attorney scanning their case for all possible grounds of inadmissibility.

Another change is that the provisional waiver will be available now even if you had a visa interview scheduled before January 3, 2013. That was a silly addition to the original rule, which seemed designed solely to prevent people from “gaming” the system when they were already in line for waiver interviews outside the United States. If those folks are still in the United States because they ended up ineligible for provisional waivers, they’ll be eligible now.

All of this is a good example of the complexity (some might say “brokenness”) of the current immigration system. Congress could easily simplify all of this by getting rid of the 3 and 10-year bars. Although they were intended to encourage people not to be in the United States unlawfully, in truth they obviously encourage people to stay in the United States even without status. They have created these extreme penalties that aren’t triggered until you leave. For most people, that makes leaving a non-option, even if they would otherwise be eligible for a visa to come back. Because the risk of your mom or your spouse getting stuck in another country for ten years is, for most people, too high.