TBA Law Blog


Posted by: Christy Gibson on Jan 22, 2013

Dear Members,

The year started off with news that the Provisional Waiver regulation was finally published and will be effective on March 4, 2013. You can find the regulation at https://www.federalregister.gov/articles/2013/01/03/2012-31268/provisional-unlawful-presence-waivers-of-inadmissibility-for-certain-immediate-relatives.

The Provisional Waiver regulation has generated some confusion with regard to who is eligible to take advantage of this program. Below are key eligibility factors:

·      The foreign national beneficiary is physically present in the United States;

·      The foreign national beneficiary is at least 17 years of age at the time of filing of the Provisional Waiver;

·      The foreign national is the beneficiary of an approved Immigrant Visa  (IV) petition classifying you as the immediate relative of a U.S. citizen;

·      The foreign national beneficiary has an IV case pending with the U.S. Department of State (DOS), for which the foreign national beneficiary or sponsor have already paid the immigrant visa processing fees;

·      The foreign national beneficiary has not already been scheduled for an IV interview at a US Consulate abroad;

·      The foreign national beneficiary is, or will be at the time of the IV interview, inadmissible based on having accrued a certain period of unlawful presence in the United States; and

·      The foreign national beneficiary meets all other requirements of the provisional unlawful presence waiver as listed in the regulations

The standard for adjudication of the Provisional Waiver remains the same: extreme hardship to the qualifying relative. The term “extreme hardship” is a not a “fixed and inflexible meaning”; establishing extreme hardship is “dependent upon the facts and circumstances of each case.” Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999). The Board of Immigration Appeals (BIA) in Matter of Cervantes-Gonzalez lists the factors it considers relevant in determining whether an applicant has established extreme hardship, which include:

·      the presence of a United States citizen spouse or parent in the United States;

·      the qualifying relative’s family ties outside the United States;

              ·      the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries;

·      the financial impact of departure from this country; and

              ·      significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

On January 30, 2013, I will be hosting a webcast on the new Provisional Waiver regulation which will include a discussion about preparing a waiver case for submission to the USCIS. In the webcast, I will cover issues regarding the eligibility for those with criminal convictions, medical grounds of inadmissibility, whether those previously or currently in removal proceedings are eligible for this program, and what to do if your client already had an IV interview scheduled but did not attend. I welcome your questions in advance of the webcast. Please feel free to email me directly at elaine@wittylaw.com.

All the best,

Elaine H. Witty, Esq.

Chair, Immigration Law Section