Something big happened today in the immigration realm. I’m surprised none of the major news outlets have yet covered it. It will help thousands upon thousands to gain permanent residency in the USA.
The change involves those who can apply for the provisional waiver of inadmissibility. Effective August 29, 2016, the provisional waiver (Form I-601A) can be filed not only by immigrants who entered the been in the country illegally for over a year and are married to a US citizen, but now those who are married to Lawful Permanent Residents (LPRs) OR have a LPR or USC parent can now apply as well.
To explain why this is a big deal, let’s say, Jim, an immigrant from Brazil, came to the US illegally in 2002. He married Martha, an immigrant who came to the United States in 2009 and became a permanent resident in 2015 through a petition from her US citizen father. Martha has only been an LPR for one year and, therefore, cannot file for citizenship for another four years.
Martha can file a Form I-130 for her husband Jim, but Jim has a problem. After the I-130 he is barred from taking the next step toward LPR status. Jim has been in the US illegally since 2002. That means, if he leaves the United States, he will be subject to the ten-year penalty (see my blog post from 9/15/2015).
In order for Jim to become an LPR and get his green card, before today, he would have had to get an appointment at the consulate in Brazil, go to the appointment, get denied because of the ten-year penalty, and then file a waiver while stuck in Brazil. Jim would have been in Brazil for about a year, if everything went well.
With the changes coming next month, however, Jim can get a provisional waiver through his wife, which means that he can file the waiver here in the United States before going to the consulate in Brazil and getting denied there. That makes a huge difference. If Jim had a parent that was an LPR or USC, he could also get a waiver through them.
You see, these waivers are based on extreme hardship to the family in the alien’s absence. By not allowing the provisional waiver in these circumstances prior to now, the government was essentially telling immigrants they need to go out of the country and then prove your family is suffering without you in order for you to come back. Really messed up, right? Now, if they can prove their family would suffer in their hypothetical absence, they can avoid the mess. Jim still has to leave the country for a consulate interview in Brazil. However, if everything goes smooth, he’ll be out of the country for a few weeks rather than a year.
There are a few other changes in the new policy- the biggest is the ability of someone who has been deported, and then returned illegally, to file an I-212 while in the United States and then file for a I-601A if married to an LPR or USC. That’s a huge change. Huge.
Read the official final rule here: https://www.federalregister.gov/articles/2016/07/29/2016-17934/expansion-of-provisional-unlawful-presence-waivers-of-inadmissibility
As always, this is just a brief summary- if you think it may apply to you, call me! We do a LOT of waivers- my wife’s company does them for attorneys all over the country (my601waivers.com).