Today, The U.S. Department of Homeland Security (DHS) finalized a rule that expands eligibility for provisional waivers of inadmissibility based on the accrual of unlawful presence. The provisional unlawful presence waiver (“provisional waiver”) process allows certain individuals who are present in the United States to request from U.S. Citizenship and Immigration Services (USCIS) a provisional waiver on the grounds of inadmissibility before departing the United States for consular processing of their immigrant visas – rather than applying for a waiver abroad after their immigrant visa interviews using the Form I-601. The provisional waiver process is designed to encourage unlawfully present individuals to leave the United States, attend their immigrant visa interviews, and return to the United States legally to reunite with their U.S. citizen or lawful permanent resident (LPR) family members.

This final rule provides that eligibility for the provisional waiver will no longer be limited to the subset of statutorily qualified individuals who seek to immigrate as immediate relatives of U.S. citizens and who can show that denial of admission will result in extreme hardship to a U.S. citizen spouse or parent. Rather, this final rule makes eligibility for the provisional waiver available to all individuals who are statutorily eligible for a waiver of the unlawful presence grounds of inadmissibility. Under the new rule, such an individual must go abroad to obtain an immigrant visa, establish that denial of admission will result in extreme hardship to a U.S. citizen or LPR spouse or parent, establish that his or her case warrants a favorable exercise of discretion, and meet all other regulatory requirements. Eligibility for the provisional waiver will also extend to the spouses and children who accompany or follow to join principal immigrants. For those eligible, it provides the opportunity to apply for a waiver before departing the United States to obtain an immigrant visa. The DHS says the new rule promotes family unity, especially now that the immigrant can remain with their family pending a decision on their waiver.