Opinion

DHS publishes ‘expanded’ provisional waiver rule for 3/10-year bar

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

August 1, 2015 | 10:00am

The USCIS has published a proposed rule expanding eligibility for a provisional waiver of the 3/10 -year bar. The expanded provisional waiver will include “all aliens” statutorily eligible for the waiver. At present, only immediate relatives of US citizens (spouse, parents, and child) may apply for a provisional waiver of the 3/10-year bar, before they depart the US for immigrant visa processing at the US embassy, provided they demonstrate “extreme hardship” on a US citizen spouse or parent.

The proposed rule expands eligibility in two ways:

• Not only are immediate relatives of US citizens eligible for a provisional waiver, but also other family and employment-based categories.

• A person can demonstrate “extreme hardship” not only on a US citizen parent or spouse, but also on an immigrant (LPR) spouse or parent.

A provisional waiver could benefit people who are ineligible to adjust status in the US, such as:

• crewman (or jump ships), who do not have the benefit of Section 245(i);

• people who entered the US without inspection (EWI), but do not have the benefit of Section 245(i); and

• people who entered the US on a K-1 fiancée visa, but did not marry the US citizen who petitioned them, but instead married a different American.

In all these cases, the person is ordinarily not eligible to receive a green card (adjust status) in the US, but instead must go back to the Philippines for an immigrant visa, which could trigger the 3/10-year bar. The purpose of this regulation is to shorten the amount of time these people are separated from their family members, while they process their immigrant visas overseas at the embassy.

However, before you jump on a plane for Manila, here are some FAQs about this regulation:

1. What is the 3/10-year bar? The 3/10-year bar is a law, which basically states that anyone who is out of status in the US for more than 180 days, but less than a year, and then departs the US, is barred from returning to the US for 3 years. Anyone who had been out of status for more than one year, and then departs is barred from returning for 10 years. This 3/10-year bar is triggered only when the alien departs the US.

2. What is the procedure currently in place for people who are subject to the 3/10-year bar? Under current law and procedures, when a person has been found to have triggered the 3/10 year bar (by departing the US after being out of status for more than 180 days), the person must apply for a waiver (or forgiveness) at the US embassy by demonstrating certain relatives (called “qualifying relatives”) would suffer “extreme hardship” if the waiver is not granted. At present, these qualifying relatives include the person’s spouse or parent who is a US citizen or lawful permanent resident (LPR). A child is not considered a “qualifying relative” for purposes of evaluating the waiver or extreme hardship. However, the alien must apply for the waiver only after he or she departs the US and applies for the immigrant visa at the embassy. In

addition, the adjudication of the waiver may take weeks, months, or even years to be completed. In the meantime, the family is separated for a lengthy period of time, waiting for the waiver to be processed.

3. Who is eligible under the originalexisting “provisional waiver” process? The only family members currently eligible for the existing provisional waiver are immediate relatives (spouse, parent, or minor child) of a US citizen, and only where a US citizen parent or spouse would suffer extreme hardship.

4. Who is eligible under the proposed expanded provisional waiver process? In addition to “immediate relatives”, a petition by an LPR (green card holder) relative or an employer would also qualify, or where the “qualifying relative” is an LPR spouse or parent. For example, if you have a USC child and an LPR spouse, you could be petitioned by your USC child (which is faster), and qualify for a provisional waiver by demonstrating extreme hardship on your LPR spouse or parent. Similarly, if you were petitioned by an employer and have an LPR parent, you could also qualify for the provisional waiver, by demonstrating extreme hardship on your LPR parent.

5. What are the benefits of the “provisional waiver” program? This procedure would allow qualified aliens, with a US citizen or LPR parent or spouse, to apply for a waiver of the 3/10 year bar, while still in the US, and before they depart the US for immigrant visa processing overseas. If the waiver is granted, they would then depart the US (with the approved waiver in hand), and would not have to wait several months outside the US to process that 3/10 year bar waiver.

6. Would this provisional waiver process apply to other immigration violations or grounds of inadmissibility? No. This provisional waiver applies only to the 3/10 year bar. If a person has other immigration violations, such as fraud (assumed name entry), criminal convictions, and the like, which also require a waiver, the person would have to apply for all such waivers outside the US

7. If I’m being petitioned as an immediate relative, do I really need to depart the US? In many cases, people being petitioned as an “immediate relative” can still adjust status (obtain their green card), in the US even if they are out of status, worked without authorization, or do not have the benefit of Section 245(i). If a person is eligible to adjust status in the US, they should not even think of departing the US, and, therefore, trigger the 3/10 year bar. See an attorney, who can determine if you even need to depart the US to obtain your green card. Maybe you don’t need to.

8. Are there any people who could benefit from this proposed “provisional waiver” process? There are still a few categories of aliens who are not eligible to adjust status in the US, even if petitioned by a US citizen as an immediate relative. These include: (a) crewman (jump ship) without Section 245(i); (b) someone who entered the US without inspection (EWI), such as snuck across the border, and does not have the benefit of Section 245(i); (c) a person who entered the US on a K-1 fiancée visa, but did not marry the American who filed the K-1 petition, but married a different American instead, and the like. So this regulation could possibly benefit them, if they have no other immigration violations, such as fraud, misrepresentation, etc.

In conclusion, if you think this proposed expansion of the provisional waiver could benefit you, you should definitely seek the advice of a reputable attorney, who can evaluate your circumstances and status, and determine if it is even necessary for you to depart the US, and if so, can assist in preparing and processing this provisional waiver. As you can see, only certain people would be eligible for this provisional waiver.

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