The Main Limitations of the Provisional Unlawful Presence Waiver Final Rule

The Main Limitations of the Provisional Unlawful Presence Waiver Final Rule

By Jordana L. Mosten

The provisional unlawful presence waiver will help immediate relatives of U.S. citizens who must leave the country to apply for permanent residency, Jordana L. Mosten, a Skadden Fellow at Public Counsel in Los Angeles and an attorney in the Immigrants' Rights Project, writes in this Emerging Issues Analysis. The new regulation will allow them to apply for the waiver and obtain provisional approval before leaving the United States. Though it has the admirable goal of facilitating family unity, it falls short. It too greatly limits who may apply for the waiver.

 

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The provisional unlawful presence waiver ("provisional waiver"), effective March 4, 2013, will help immediate relatives of U.S. citizens who must leave the country to apply for permanent residency. Instead of departing the country and being separated from their families without knowing whether they will ever be granted waivers allowing them to return to the United States, they will be able to apply for the waivers and obtain provisional approval before leaving the country. Though this regulation has the admirable goal of facilitating family unity, it falls short. The regulation greatly limits who may apply for the waiver, excluding a huge population of family members who are eligible to immigrate. This article discusses the current state of the law, the restrictions on who may apply for the provisional waiver, and the extreme-hardship standard required for waiver approval. It concludes that the waiver is unduly restrictive and should be amended to treat all family members equally.

Current Waiver Process (Form I-601).

As part of the U.S. immigration policy of promoting family unification, U.S. citizens and legal permanent residents ("LPRs") can petition for certain family members (spouses, children, siblings, and parents) who are already living in the United States to become permanent residents. Individuals who entered the United States lawfully and meet other requirements may apply for permanent residency while remaining in the country. However, individuals who were not admitted or paroled (but rather entered without inspection) cannot adjust their status in the United States. Instead, they must return to their native countries and apply for their immigrant visas in U.S. consulates in a process called consular processing. Requiring family members to leave the United States not only causes an emotional and financial toll on the United States-based family members, but, for vast majority of these individuals, the act of leaving the country can bar them from returning for up to a decade. This is known as the three-or-ten-year bar. Individuals who accrue unlawful presence in the United States for certain periods, leave the country, and then apply for admission back into the United States are barred from re-entering the country for three or ten years.

Under current law, a family member who is the spouse or child (not parent or sibling) of a U.S. citizen or LPR can apply for a waiver of the bar. The waiver is discretionary, and it may be granted if U.S. Citizenship and Immigration Services ("USCIS") determines that refusing admission to the family member would result in extreme hardship to the U.S. citizen or LPR spouse or parent.

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