On July 29, 2016, the USCIS published a final rule expanding the availability of the provisional unlawful presence waiver to individuals. This new rule will provide very significant relief for thousands of individuals who are out of status and who were previously ineligible for such a waiver. The following is an overview of the changes that will be implemented as of August 29, 2016.

 Q: What Are the “Unlawful Presence” Bars to Admissibility?

A: Under Section 212(a)(9)(B) of the Immigration and Nationality Act, a person who has accrued more than 180 days of “unlawful presence” in the United States is subject to a 3-year bar to readmission that is triggered upon departure from the United States. A person who has accrued one year or more of unlawful presence will trigger a 10-year bar to readmission.

In general, individuals who have an approved immigrant visa petition, but who are present in the United States without status because they entered the U.S. illegally or overstayed their visas are ineligible to adjust their status to lawful permanent resident (LPR) while remaining in the United States. Instead, such individuals must leave the United States and apply for an immigrant visa at a U.S. embassy or consulate abroad. However, as described above, departure may trigger a 3- or 10-year bar to readmission.


As a general matter, the 3 or 10-year bar to readmission may be waived, under INA §212(a)(9)(B)(v), if the applicant can demonstrate that the refusal of his or her admission would cause “extreme hardship” to a U.S. citizen or LPR spouse or parent.

Q: What Is a Provisional Waiver and How Is it Different from a Regular Waiver?

A: Prior to 2013, when the provisional waiver process was rolled out, an individual who departed the United States to apply for an immigrant visa at a U.S. embassy or consulate, and who was found inadmissible based on prior unlawful presence, could only apply for a waiver of inadmissibility with USCIS, and only after a consular officer made a finding of inadmissibility at the visa interview.

In 2013, in recognition of the hardships that are imposed upon American families during the lengthy separation that often accompanies the “regular” waiver process, USCIS published a final rule implementing a new “provisional” unlawful presence waiver. This provisional waiver process allows an applicant who knows he or she will be subject to the 3 or 10-year bar upon departure to apply for “provisional” approval of an unlawful presence waiver prior to departing the United States for the immigrant visa interview. Assuming there are no other eligibility or admissibility issues, an approved provisional waiver should permit a consular officer to issue an immigrant visa without undue delays. Prior to the implementation of the provisional waiver process, it was not uncommon for individuals to be stuck outside the United States for many months, and sometimes years, while they awaited approval of a waiver.


Q: Who Can Apply for a Provisional Waiver Under the 2016 Rule and How Is This Different From the 2013 Rule?

A: A number of changes to the threshold eligibility requirements are included in the final 2016 rule:

Visa Classification/Qualifying Relative:

2013 Rule: Under the 2013 rule, a provisional waiver was limited to those immigrating to the U.S. as “immediate relatives,” (spouses and children of U.S. citizens and parents of adult U.S. citizens) who could demonstrate extreme hardship to a U.S. citizen spouse or parent.

2016 Rule: Under the 2016 rule, anyone who is statutorily eligible for an unlawful presence waiver may apply for a provisional unlawful presence waiver, regardless of their immigrant visa classification. In other words, if the visa applicant can demonstrate extreme hardship to a U.S. citizen or LPR spouse or parent, he or she may apply for and receive a provisional waiver, whether the basis for the immigrant visa is an employment-based preference category, a family-based preference category, the diversity visa lottery, or a special immigrant classification.

Final Order of Removal:

2013 Rule: Under the 2013 rule, an individual with a final order of removal, deportation, or exclusion was ineligible for a provisional waiver.

2016 Rule: Under the 2016 rule, an individual with a final order of removal, deportation, or exclusion may apply for a provisional waiver if he or she has obtained conditional approval of a deportation/removal waiver.

Q: When Does the 2016 Rule Become Effective?

A: The 2016 rule is effective August 29, 2016.


If you have questions about this or other immigration law questions, please contact us!

By Ken Russo

While my background is in the legal industry, the skills acquired and fine-tuned in law practice are now applied to focus on the sport of football. Russo Soccer aims to inform, educate and engage on news and relevant issues in the game.

Um advogado por formação, concentro meu trabalho nos negócios, comunicações e operações de equipes no futebol mundial. | Abogado con fundación avanzada en comunicaciones, enfocado en los negocios del fútbol y las comunicaciones. | Je suis un avocat experimenté dans les affaires de football.