New Provisional Waiver Regulations
USCIS has published new regulations for the Provisional Waivers. Provisional Waivers waive the three and ten year bars for individuals who have been in the US out of status for at least 180 days or one year.
Prior to these new regulations, Provisional Waivers were only available to the “immediate relative” visa categories. The new regulations allow all the other categories, including the visa lottery winners, to apply.
To qualify for a provisional waiver, the applicant must:
- be in the US at the time of ﬁling the application.
- have a case pending with the Department of State based on:
- an approved immigrant visa petition for which the Department of State immigrant visa processing fee has been paid; or
- selection by the Department of State to participate in the visa lottery.
- be the spouse, son or daughter of either a US citizen or of a legal permanent resident who will suﬀer extreme hardship in the applicant must leave the US.
The new regulation do not include any new guidelines as to what constitutes extreme hardship.
The waiver is only a waiver of the bars for being out of status. It is conditional on the consular oﬃcer not ﬁnding other grounds of inadmissibility.
Because the Provisional Waiver application is ﬁled while the applicant is in the US, the applicant avoids having to be out of the US for the length of time it takes USCIS to process the waiver, a process that is currently taking over seven months.
If the Provisional Waiver is approved, the applicant would still need to travel to their home country for the actual visa application. However, unless other grounds of inadmissibility are found, the stay there should two to four weeks, and not the six months or more that would be required for a waiver application ﬁled after the consular interview.
The new regulations are eﬀective on August 29, 2016.