The new provisional waiver and how it has affected my clients

Yesterday, United States Citizenship and Immigration Services (USCIS) published a new rule.  Currently, there are many people in the United States who are married to U.S. citizens but entered the country illegally. These people are required to leave the country and apply for a visa at the consulate in their home country if they wish to obtain a green card.  They cannot receive a green card inside the country without leaving.

When someone who has been in the United States more than one year unlawfully leaves the country, he becomes subject to the “10-year bar” meaning he cannot reenter for 10 years.  However, a spouse of a US citizen can get a waiver for this 10-year bar.  The new rule will allow these spouses of US citizens to apply for this waiver before leaving the country.  It can take many months to process this waiver.  Before this new rule, everyone had to wait outside the country for the processing time.  As you can imagine, this was very inconvenient for the immigrant as well as the U.S. citizen spouse.

I have been keeping a waiting list of people that have come to me expressing interest in this new provisional waiver which allows these certain people to apply inside the U.S. before leaving.  Yesterday, I went through my list to begin deciding who would qualify for the waiver.  However, I found that many people on the list did not qualify.  Here are the top reasons that people do not qualify for the waiver from what I’ve seen:

1. The US citizen spouse filed a family petition already.  Often, people married to US citizens filed petitions in the past.  When the interview came up in Ciudad Juarez or some other consulate, the immigrant didn’t go because he didn’t want to get stuck outside the country.  These people are in the same position as before.  No provisional waiver is available.
2. The immigrant has a criminal conviction.  USCIS will not grant the provisional waiver to anyone with any convictions other than for traffic violations.  The most common crime I see are DUIs.
3. The immigrant is in deportation proceedings.  The only way to fix this issue is to terminate the proceedings.
4. The immigrant has a removal order.  The only way to fix this issue is to reopen and then terminate the proceedings.
5. The immigrant stayed in the United States for more than one year, then left, then reentered illegally.  People who do this are permanently inadmissible to the U.S. and must wait outside for 10 years before asking for a waiver.  This also applies to people who got removal orders and then reentered illegally.

So my list went from a lot to not as many as I had expected after a more thorough evaluation of each person’s facts based on the new rule.

All of the disqualifiers aside, I’m very excited to help the people that do qualify – it’s an awesome policy that USCIS has instituted.

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