Proposed Provisional Unlawful Presence Wavers

76773_sign_no_entry_2.jpgThe USCIS proposed a plan March 30, 2012 to create a new waiver of unlawful presence called the “provisional waiver.” This waiver would allow a foreign national to apply for a waiver of the 3/10 year bar while still inside the United States. This proposed process has not yet taken effect and is currently unavailable.

What is the 3/10 year bar?

A foreign national who remains in the US in unlawful immigration status for six months, then departs from the US, that person is barred against reentry into the US for 3 years. If the unlawful status was for one year or more, the bar becomes 10 years. The bar does not apply unless the person leaves the US first. Therefore, the only way to apply for a waiver under the current law is to leave the US and request a waiver and wait abroad for the application to be adjudicated before being allowed to reenter. This is risky because if the waiver is denied, then the person becomes stuck outside the US for 3 to 10 years.

The proposed provisional waiver
The new proposal would allow a foreign national to file the waiver application while still inside the United States. This would let a person remain in the United States while the application is pending, and once granted it allows the person to depart from the US knowing that he or she will not be subject to the 3/10 year bar. The provisional waiver would be available to foreign nationals who can establish their inadmissibility would cause extreme hardship to their US citizen spouse, children, or parents.

When will the proposed provisional waiver take effect?

The provisional waiver procedure is not in effect, and according to the USCIS it will not be available until a final rule is published in the Federal Register that will specify the effective date. The USCIS has said it will publish a notice within the coming months.