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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:

[li]Family ties to the United States and the country of removal[/li][li]Conditions in the country of removal[/li][li]The age of the U.S. citizen or permanent resident spouse or parent[/li][li]The length of residence in the United States[/li][li]Relevant medical and mental health conditions[/li][li]Financial hardships[/li][li]Educational hardships[/li]

If you feel that you or someone you know might be a good candidate for the provisional waiver program you should contact our office today. David E. Walters is a Nevada and California Licensed Attorney with years of immigration law experience. He will be able to give you the best legal advice for your situation and fight for your rights!


David Walters
David Walters
David E. Walters practices immigration law in Las Vegas, Nevada. He has been licensed to practice law in California since 1998 and Nevada since 1999. He is also admitted to practice before the District Court of Nevada, Central District of California, and the Ninth Circuit. He is a member of the American Immigration Lawyers Association and Nevada Attorneys for Criminal Justice. He teaches immigration in the Hispanic Citizens’ Academy for the Las Vegas Metropolitan Police Department. Mr. Walters graduated from Loyola Law School in Los Angeles, CA in 1998. During law school, he was a member of the St. Thomas More Law Honor Society and the Loyola of Los Angeles International and Comparative Law Journal. David is married to Isabel Walters, an immigrant from Ecuador who is now a U.S. citizen. They have two children.

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