USCIS publishes ‘provisional waiver’ regulations, allowing processing of 3/10-year bar waivers before alien departs US

Recently, the USCIS published final regulations allowing immediate relatives of US citizens (spouse, parents, child) to request a waiver of the 3/10 year bar, before they depart the US for immigrant visa processing at the US embassy. This procedure will take effect starting on March 4, 2013, and will greatly benefit:

(a) crewman (or jump ships) who married US citizens, but do not have the benefit of Section 245(i);

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

(c) people who entered the US on a K-1 fiancée visa, but did not marry the American 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 citizens are separated from their family members who must process their immigrant visas overseas, and apply for the 3/10-year bar waiver.

But 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 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 that 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. And 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 “provisional waiver” process?

The only family members eligible for this new procedure would be immediate relatives (spouse, parent, or minor child) of a US citizen, and only where a US citizen parent or spouse would suffer extreme hardship. However, USCIS “will consider expanding the provisional unlawful presence waiver process to other categories.” Therefore, at the present time, a petition by an LPR (green card holder) relative or an employer would not qualify, or where the “qualifying relative” is not a US citizen spouse or parent. For example, if you are being petitioned by an LPR spouse, you would not be eligible under this process, since it would not be an “immediate relative” petition by a US citizen. Similarly, if you were petitioned by a US citizen child, but do not have a spouse or parent who is a citizen (i.e. your spouse is still an LPR), you also would not be eligible for this provisional waiver program, as you don’t have a “qualifying relative” who is a citizen.

4. What are the benefits of this “provisional waiver” program?

This new procedure would allow immediate relatives, with a US citizen parent or spouse, to already 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 thus would not have to wait several months outside the US to process that 3/10-year bar waiver.

5. 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.

6. If I’m being petitioned as an immediate relative, do I really need to depart the US?

In many cases, people who are being petitioned as an “immediate relative” are still able to 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 in order to obtain your green card. Maybe you don’t need to.

7. 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 regulation 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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