This may be a first — I’m about to compliment the writing of a U.S. government employee. That’s right, the new Department of Homeland Security regulations called, “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives,” just out in today’s Federal Register, are surprisingly readable. And that’s saying a lot, given that they go on for about 40 pages.
Good thing the new regs are readable, too, because they’re incredibly important. They establish both eligibility and application procedures for a new waiver process. Immediate relatives of U.S. citizens who are inadmissible because they’ve been living in the U.S. unlawfully, and who are not eligible to remain in the U.S. to file their green card applications using the procedure called “adjustment of status,” can now file for a waiver of inadmissibility before, not after they leave the U.S. for the visa interview at which their green card might be granted. (The largest affected group will be immigrants who entered the U.S. without inspection.)
This pre-departure filing option is important because leaving the U.S. is a huge risk for people needing a waiver of unlawful presence. If their waiver is denied after their consular interview, their return to the U.S. will be barred for either three or ten years, depending on whether their unlawful stay lasted between 180 and 365 days or over 365 days.
Approval of a provisional waiver will allow them to depart with the knowledge that their unlawful stay won’t bar their return — and will therefore remove the fear of family separation that is blocking many potential lawful permanent residents from pursuing their green card application at all.
For details, see Nolo’s update, “DHS Publishes Procedures for Green Card Applicants to Request Unlawful Presence Waiver,” as well as its articles on ” Who Is Eligible for Provisional Waiver of Three- or Ten-Year Time Bar” and ” How to Apply for Provisional Waiver of Three- or Ten-Year Time Bar.”