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Provisional waivers to be expanded to children and spouses of lawful permanent residents (LPRs)

On July 28, 2016, the Department of Homeland Security significantly expanded the provisional waiver program. The provisional waiver program had allowed beneficiaries of certain family petitions to obtain a waiver of inadmissibility for unlawful presence of greater than 180 days before the immigrant visa interview, avoiding the necessity to obtain such a waiver at the US embassy or consulate abroad, thus greatly shortening the time away from their families.

The biggest and most significant change is that the Department is broadening the availability of the provisional waiver process to include all statutorily eligible individuals, including all beneficiaries of family-sponsored and employment based immigrant visa petitions, as well as Diversity Visa selectees, who have a qualifying relative, which include either a US citizen or Legal Permanent Resident spouse or parent, under the statute for purposes of the extreme hardship determination.

Accordingly, if the applicant is a beneficiary of a family based or employment based petition, a visa is immediately available, and the applicant has a US citizen or LPR spouse or parent, they now qualify for the expanded provisional waiver program.

Also significantly, the Department of Homeland Security has expanded the provisional waiver program to cover those with final orders of removal, deportation, or exclusion to apply for provisional waivers if they have first received a conditional approval from the Department to reapply for admission to the United States. However, the expanded rule does not waive those inadmissible under 212(a)(9)(C) nor does it apply to those subject to an order of reinstatement of removal formally issued by CBP or ICE prior to the filing of the provisional waiver or while the provisional waiver application is pending. This rule will go into effect on August 29, 2016.

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