President Obama, as part of his Executive Action on immigration, has announced an expansion of the immigrants who can apply for a provisional waiver of the 3-10 year bar for unlawful presence.
Q - What is a provisional waiver?
A - Many undocumented immigrants who are beneficiaries of a family petition are required to leave the U.S. in order to apply for permanent residence. Once they leave the U.S., they are barred for 3-10 years because they have been unlawfully present in the U.S. They can apply for a waiver or "pardon" of their unlawful residence, but in the past were required to do so once they had left the U.S. and had their interview at a consulate. This resulted in prolonged family separation while waiting for waivers to be approved.
The provisional waiver program was established in 2013 to allow spouses and children under 21 of U.S. citizens to apply for a waiver while in the U.S. ("stateside"), and to spend less time separated from their family members in the U.S. in order to apply for permanent residence.
In his memorandum dated November 20, 2014, Secretary Jeh Johnson instructed DHS to amend the 2013 regulation to expand the provisional waiver program to others eligible for immigrant visas and a waiver: spouses and children of permanent residents, and children over 21 of U.S. citizens.
Q - Who can apply?
A - Undocumented immigrants who have (1) an approved immigrant petition; (2) an immigrant visa immediately available; (3) a U.S. citizen or permanent resident spouse or parent who will experience "extreme hardship" if they are not allowed to remain in the U.S.
Secretary Johnson also instructed U.S.C.I.S. to clarify the factors that are considered in determining whether the "extreme hardship" standard has been met.
Q - When can I apply?
A - Spouses and minor children of U.S. Citizens can apply for a provisional waiver now.
Spouses and children of permanent residents and children over 21 of U.S. citizens must wait for the regulations to be revised by U.S.C.I.S. No deadline was given for the adoption of these new regulations.
NOTE: Parents are not included in the category of immigrants who can apply for a waiver of unlawful presence, and will not be included in the provisional waiver program.