DHS last week published a long-awaited final rule expanding eligibility for the provision unlawful presence waiver to include family members of lawful permanent residents.
Individuals who are unlawfully present in the United States for more than 180 days trigger a three-year bar on reentering the country once they depart, or a ten-year bar if unlawfully present more than one year. The unlawful presence waiver allows individuals who are otherwise eligible to apply for an immigrant visa to waive this unlawful presence ground of inadmissibility if a qualifying family member will suffer extreme hardship in their absence. In 2013, USCIS created the “provisional” waiver, which allows individuals to apply for the waiver before departing the United States, avoiding lengthy separations from family members in the United States while the waiver is adjudicated. Until now, however, only U.S. citizen spouses or parents could serve as qualifying relatives for the purpose of the provisional waiver. Under the new rule, lawful permanent resident spouses and parents may also serve as qualifying family members for a provisional waiver. USCIS will begin accepting provisional unlawful presence waivers based on extreme hardship to LPR spouses and parents when the rule goes into effect on August 29, 2016.