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Unlawful Presence
U.S. Citizenship and Immigration Services (USCIS) announced a final rule expanding the existing provisional waiver
process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents
(LPRs), to more easily navigate the immigration process.  The provisional waiver process promotes family unity by
reducing the time that eligible individuals are separated from their family members while they complete immigration
processing abroad.

This final rule builds on a process established in 2013 to support family unity.  Under that process, certain
immediate relatives of U.S. citizens can apply for provisional waivers of the unlawful presence ground of
inadmissibility, based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were
not granted.  The rule goes into effect on Aug. 29, 2016 and expands eligibility for the provisional waiver process
to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility.

Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing
the United States for the processing of their immigrant visas.  Those eligible for the provisional waiver process
under the 2013 rule are only a subset of those eligible for the waiver under the statute.  This regulation expands
eligibility for the process to all individuals who are statutorily eligible for the waiver.

To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident
spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United

The final rule also makes changes to Form I-601A, Application for Provisional Unlawful Presence Waiver.  These
changes will go into effect along with the final rule.

If you believe that you or someone you know may benefit from this new regulation, we recommend
that you consult with our experienced immigration attorneys to discuss your options.