New York Lawyer's Legal Updates

Provisional Immigration Waivers May Help Keep Families Together

Author: NY immigration lawyer Alena Shautsova

If implemented, a new proposal to change certain immigration rules by the U.S. Citizenship and Immigration Services (USCIS) may bring relief to immigrant families. The change being considered would allow provisional waivers under the Immigration and Nationality Act prior to leaving the United States for consular processing of immigrant visa applications. To better understand how this works, first you need to understand the current rules.

Current Rules

Immigrants unlawfully present in the United States are currently not eligible to obtain permanent residence (a green card) while remaining in the United States. To obtain a green card, immigrants must leave the country and apply for a visa at a U.S. embassy or consulate in their native country.

Based on the number of days the immigrant was present illegally, re-entry is prohibited for a specified time period:

  • Immigrants unlawfully present from 180 days up to less than one year have a three year waiting period before being allowed re-entry;
  • Immigrants unlawfully present for more than one year have a 10 year waiting period before being allowed re-entry.

However, immigrants may apply for waivers when they can prove their absence creates extreme hardship for a U.S. citizen or permanent resident family member.

Proposed Changes - Provisional Waivers

Under the Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens proposal, undocumented immediate family members, spouses and children of U.S. citizens may apply for a provisional waiver while in the United States and remain here until the USCIS approves the waiver. They must still prove extreme hardship, but the provisional waiver helps to reduce periods of family separation while abroad that can cause financial devastation and emotional duress.

If facing deportation and removal issues, seek the help of a skilled New York immigration lawyer as soon as possible.

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