New Final Rule on Provisional Unlawful Presence Waivers

On July 29, 2016, the Department of Homeland Security (DHS) published a new final rule expanding provisional unlawful presence waivers [see 81 FR 50243]. The new rule will take effect on August 29, 2016. We have already published a detailed article on the modified regulations for provisional unlawful presence waivers created by the new rule [see article]. Our article discusses in detail the mechanics behind the 3- and 10-year unlawful presence bars [see article], unlawful presence waivers [see section], and the purpose of a provisional unlawful presence waiver [see section]. In this post, I will discuss the following:

Changes from the proposed rule to the final rule on provisional unlawful presence waivers
Changes from the old rules regarding provisional unlawful presence waivers to the new rules
Analysis of the new rules

I encourage you to read our full article about the new rules before consulting this post. For further reference for those who are interested, we have preserved our old article on the previous provisional unlawful presence waiver rules [see blog].

Changes from the proposed rule to the final rule on provisional unlawful presence waivers

On July 22, 2015, the DHS released the proposed rule for the expansion of provisional unlawful presence waivers [see 80 FR 34448]. In accordance with the Administrative Procedures Act (APA), the proposed rule was open for notice and public comment before the DHS took the comments into account and published the final rule. The final rule is broadly similar to the proposed rule from 2015. However, in 81 FR 50245 (final rule), the DHS listed the substantial changes it made from the proposed rule in the final rule (paraphrased):

1. Clarified that all individuals who seek provisional unlawful presence waivers, including those who are in removal proceedings, must file applications for provisional unlawful presence waivers with the United States Citizenship and Immigration Services (USCIS).
2. Allowed individuals to apply for unlawful presence waivers even if the USCIS has a “reason to believe” that they may be subject to a ground of inadmissibility other than for unlawful presence.
3. Eliminated proposed temporal limitations that would have restricted eligibility to apply for provisional unlawful presence waivers based on Department of State (DOS) visa interview scheduling.
4. Allowed individuals subject to final orders of removal, deportation, or exclusion to be eligible for provisional unlawful presence waivers provided that they have applied for, and USCIS has approved, a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
5. Clarified that in order for an in order for an individual who has returned to the United States unlawfully to be ineligible for a provisional unlawful presence waiver on that basis, the DHS must have reinstated a removal, deportation, or exclusion order [see article].

The Federal Register notice adds that the DHS made several other “technical and non-substantive changes” in the Final Rule.

Changes from the old rules regarding provisional unlawful presence waivers to the new rules

On January 3, 2013, the DHS published the final rule for the previous regulatory scheme regarding provisional unlawful presence waivers [see 78 FR 535]. We discussed these rules in our archived article on provisional unlawful presence waivers [see blog]. The new final rule makes several important changes to the provisional unlawful presence rules that are generally favorable to potential applicants.

The new rules will allow any alien who can qualify for an unlawful presence waiver to apply for a provisional unlawful presence waiver. Under the previous rules, only an alien who was the beneficiary of an approved immigrant visa petition as an immediate relative of a U.S. citizen was eligible to apply for a provisional unlawful presence waiver. Under the new rules, an alien who is (1) the beneficiary of an approved immigrant visa petition in the family-sponsored, employment-based, or diversity visa categories and (2) who can demonstrate that the refusal of his or her admission would result in extreme hardship to a U.S. citizen spouse or parent or lawful permanent resident (LPR) spouse or parent is eligible to apply for a provisional unlawful presence waiver.

A second significant change is the elimination of the “reason to believe” standard. Under the previous regulatory scheme and in the provisional rule, an application for a provisional unlawful presence waiver would be denied if the USCIS had a reason to believe that the applicant was inadmissible on a different ground than that which would be covered by an unlawful presence waiver. Under the new rule, the reason to believe standard has been eliminated, and the applicant may apply for a provisional unlawful presence waiver even if the DHS has reason to believe he or she may be inadmissible on a different ground. However, it is important to note that if the applicant is found to be inadmissible on a different ground during consular processing, the provisional unlawful presence waiver would become invalid, and the applicant would have to apply for an unlawful presence waiver from abroad (in addition to a waiver for any other ground(s) of inadmissibility).

Under the previous rules, if the DOS had acted prior to January 3, 2013, to schedule an alien's immigrant visa interview, the alien would be ineligible to apply for a provisional unlawful presence waiver. These restrictions were also included in the proposed rule. However, in the new final rule, the DHS decided to eliminate temporal restrictions on applying for provisional unlawful presence waivers.

Finally, as discussed in the previous section on changes from the provisional rule, the DHS will now allow those with administratively final orders of removal, deportation, or exclusion to apply for provisional unlawful presence waivers provided that they have been granted permission to reapply for admission in the form of an approved Form I-212. Under the previous rules, such individuals would be ineligible to apply for provisional unlawful presence waivers.

To learn about more of the changes, please consult the opening paragraph of this article for links to our extensive articles on the new and old provisional unlawful presence waiver rules.

Analysis of the New Rules

The new rules for provisional unlawful presence waivers are favorable to potential applicants in that they greatly expand the pool of people who may be eligible. A petitioner and petition beneficiary are well advised to consult with an experienced immigration attorney throughout the immigrant visa petitioning and application processes. If the beneficiary may have issues pertaining to the 3- and 10-year bars of inadmissibility, an experienced immigration attorney will be able to assess the situation and counsel the beneficiary on whether he or she may stand to benefit from applying for a provisional unlawful presence waiver.

Please make sure to read our full article on the new rules to learn about provisional unlawful presence waivers in greater detail [see article].