Massachusetts Legal Blog

Immigration Expands Eligibility Effective August 29, 2016!

Immigration Expands Eligibility for its Provisional Waiver Program, Effective August 29, 2016!

 Expansion of the Waiver Program May Allow over 100,000 Eligible Applicants for Permanent Residence to Pursue Permanent Residence While Staying with their Families Longer

Normally, if a U.S. citizen or Legal Permanent Resident (LPR, or “green card” holder) wants to sponsor their family member permanently to the United States, they must file a relative petition for their family member. Generally, once that application is approved, the family member (called a “beneficiary”) must apply for permanent residence themselves so they can obtain their “green cards,” or LPR status.

Unfortunately, the rules surrounding who is able to be granted LPR status while in the United States are very strict. This discussion will be limited to people in the United States, since beneficiaries outside of the United States are not eligible for this program.

As a general rule, if a beneficiary has broken specific immigration laws, that beneficiary will not be granted LPR status at all. However, there are many exceptions to this rule. One very well-known exception is that, if someone had accrued unauthorized presence in the United States (for example, stayed beyond the time authorized by Immigration), or even worked without authorization — but is married to a U.S. citizen — then they would be able to apply for their LPR status in the United States.

However, there are few exceptions for beneficiaries who came into the United States without a visa, typically by crossing the border without going through an authorized checkpoint. In cases such as these, or people who are otherwise inadmissible – such as those with criminal convictions, significant violations of Immigration law, or those who have been ordered removed – their only hope to obtain permanent status in the United States is to ask for a waiver.

A waiver is a request for Immigration to grant an exception to the rule. In essence, beneficiaries must show that “extreme hardship” would be suffered by either the U.S. citizen/LPR relative who filed for them, or some other U.S. citizen/LPR relative. That extreme hardship could be either having to be separated from the beneficiary, or being forced to accompany them to their home country. Trying to prove “extreme hardship” to Immigration is a difficult and complex process, but can be made significantly easier through the assistance of an experienced immigration attorney.

Immigration once required these beneficiaries to leave the United States, apply for LPR status at the Embassy or Consulate, and hope that the office abroad would grant their request for an exception. The wait outside the United States could be longer than a year while they waited for Immigration to make a decision. The strain of separation from their families was extremely difficult to endure.

In 2013, Immigration began the Provisional Waiver Program. With a provisional waiver, beneficiaries could apply for the waiver before leaving the United States, wait for Immigration to approve it, process the LPR paperwork at the Embassy or Consulate from the United States, and only travel abroad once their interview is scheduled. This typically limited the time apart from their families to a few weeks, rather than over a year. However, this exciting new change was exceedingly limited – only spouses, minor children, and parents of U.S. citizens could benefit. That limited group of beneficiaries had to prove “extreme hardship” to a U.S. citizen spouse or parent (not child), and could only apply if their only reason for not applying in the United States was because they were in the United States without authorization.

Effective August 29, 2016, this Provisional Waiver Program is going to be expanded even further.

  • Where before, only spouses, minor children, and parents of U.S. citizens could benefit, under the new rule, any relatives of U.S. citizens and LPRs can apply!
  • Where before, only “extreme hardship” suffered by a U.S. citizen spouse or parent carried any weight with Immigration, under the new rule, “extreme hardship” can be shown to a U.S. citizen or LPR spouse or parent!
  • And under the new rule, people who have been ordered removed by an Immigration Judge may be eligible to apply!

However, Immigration did change some things for all applicants. For example, before, Immigration would perform a thorough search of the beneficiary’s history – if there seemed any risk that the Embassy or Consulate might find a reason to refuse LPR status other than unlawful presence in the United States, they would deny the provisional waiver completely. This would sometimes occur whether or not another reason actually existed.

With the new rule, while Immigration will still perform a thorough background check, it will only consider whether there is actually “extreme hardship” that qualifies the beneficiary for the provisional waiver.

Assistance from an experience immigration attorney is now more important than ever; if a thorough background check and analysis of the beneficiary’s immigration situation is not conducted before they leave the United States, they may find themselves trapped abroad for three years, ten years, or even permanently!

If you feel that you may be eligible for a provisional waiver, please contact the Immigration Division at Shapiro Law Group, PC to schedule a consultation to discuss the possibility further.