U.S. Citizenship and immigration services has expanded their “provisional waiver” program to make many new immigrants eligible to apply. Allowing immigrants to have a reasonable expectation of being allowed back into the U.S. before having to leave the country for their consular interview. In addition, there has been a clarification of what factors might be considered to determine an “extreme hardship.”
Under current law some undocumented individuals in this country who are the spouses and children of U.S. citizens and lawful permanent residents, and who are eligible for visas, must leave the country and be interviewed at U.S. consulates to obtain those visas. If these qualifying individuals have been in the United States unlawfully for more than six months and later depart, they are generally barred from returning to the U.S. for 3 or 10 years.
Current law allows some of these individuals to seek a waiver of these 3- and 10-year bars if they can demonstrate that absence from the United States imposes an “extreme hardship” to a U.S. citizen or lawful permanent spouse or parent. But, prior to 2013, the individual could not apply for the waiver until he or she had left the country for a consular interview.
In 2013, the Department of Homeland Security (DHS) published a regulation establishing allowing some individuals to apply to USCIS for a waiver of the 3- and 10-year bars before departing for consular interviews. This “provisional” waiver provided eligible individuals with some level of certainty that they would be able to return after a successful consular interview and would not be subject to lengthy overseas waits.
As of November 20, 2014 DHS has amend its 2013 regulation to expand access to the provisional waiver program to all eligible relatives for whom an immigrant visa is immediately available.
The following are some of the factors that USCIS is instructed to consider in determining if an immigrant is eligible for the waiver: