DHS expands provisional waivers

The Department of Homeland Security ("DHS") published a final rule on July 28, 2016 that expands provisional unlawful presence waiver eligibility. Generally, individuals who are in the U.S. and seek lawful permanent resident ("LPR") status (commonly referred to as "green card" status) must either obtain an immigrant visa abroad through consular processing with the Department of State ("DOS") or apply to adjust their status to that of an LPR while they remain in the U.S. Individuals present in the U.S. without having been inspected and admitted or paroled, or who have overstayed a previously valid visa are typically ineligible to adjust status and instead have to depart the U.S. to process their immigrant visas abroad. However, once these individuals depart the U.S., if they have been present in the U.S. without having been inspected and admitted or paroled, or if they overstayed a previously valid visa, they may trigger a 3 year or 10 year bar to re-admission into the U.S. based on accrual of unlawful presence. The Secretary of Homeland Security has had discretion to waive this ground of inadmissibility if the individual can demonstrate that refusal of his or her admission into the U.S. would result in extreme hardship to his or her U.S. citizen spouse or parent. Previously, the foreign national would have to attend his or her immigrant visa interview abroad, and then submit a Form I-601 and evidence of the hardship to USCIS for adjudication. This process resulted in foreign nationals being separated from their family members in the U.S. for extended periods of time while awaiting adjudication of the Form I-601. 
In 2013 DHS implemented a final rule that allowed certain immediate relatives of U.S. citizen spouses and parents to submit a Form I-601A while still in the U.S., accompanied by evidence of extreme hardship their family would face if they were unable to return to the U.S. after immigrant visa processing. USCIS adjudicates the Form I-601A prior to the foreign national departing the U.S. to attend his or her visa interview, thereby reducing the amount of time families are separated from one another while awaiting immigrant visas. The 2013 final rule permitted only immediate relatives - certain parents, spouses and children of U.S. citizens - to request the waiver. By granting the waiver prior to the foreign national departing the U.S., families experienced reduced hardships and lower processing costs for DHS and DOS. In 2015 DHS published a proposed rule to expand the class of individuals who could be eligible for provisional waivers to all statutorily eligible individuals regardless of their immigrant visa classification. The final rule, published August 1, 2016, expands consideration of hardship to include both U.S. citizen and LPR spouses and parents, and is now available to all preference category immigrants, individuals with approved employment-based immigrant visa petitions, and diversity lottery immigrants. A full copy of the rule can be viewed on the Federal Register website and newly eligible individuals may begin submitting Form I-601A beginning August 29, 2016.