Provisional Waiver Open to More Applicants Easing Path to Legalization for Undocumented Immigrants

he Department of Homeland Security (DHS) published new regulations expanding the “provisional waiver.” Under the new regulations, DHS will now accept applications for the “provisional waiver” from those who have Lawful Permanent Resident (LPR or “green card” holder) spouses or parents.

The major hurdle many undocumented immigrants face when seeking to legalize their status is the “10-year bar” which blocks a foreign national from returning to the U.S. for 10 years if he or she lived in the U.S. without legal immigration status for more than one-year. For most of those who originally entered the U.S. at some place other than a regular port-of-entry—such as through the Sonoran Desert that straddles the Mexican-U.S. border in Arizona and California, or over the Rio Grande River that runs between Texas and the Mexican state of Tamaulipas—the only way to obtain legal status through a U.S. citizen or legal resident spouse or parent petitioner is to apply at the U.S. Consulate in their country of origin. For most of those who have lived in the U.S. for many years without legal immigration status, the trip abroad will trigger the 10-year bar to reenter. Before the “provisional waiver” process, applicants could only apply for a waiver while waiting in their home country—a process that could keep applicants up to a year or more away from their families, without any guarantee their waiver would be granted. Before the provisional waiver, many would travel to their home country in order to legalize their status only to be barred from coming back, separated from their family, for 10 years.



In March 2013 the Obama administration created the “provisional waiver” process which allows Applicants to apply for and obtain approval of their waivers before leaving the U.S. The provisional waiver is widely regarded as a major humanitarian advancement in the U.S. immigration legal system which allows families to stay together and offers the assurance that the applicant will be permitted to return before they depart the U.S. Until last week, however, the provisional waiver was only available to applicants with U.S. citizen spouses or parents. Now, applicants with spouses or parents who have green cards can apply for the highly sought after provisional waiver.

Additionally, the new regulations effectively create a new “conditional I-212” waiver which allows those who have previously been ordered removed from the U.S. to apply for the provisional waiver if they have a citizen or permanent resident spouse or parent. Previously, those who have been ordered removed by an immigration judge but who never departed the U.S. would have to request the Immigration Judge reopen the case before they could apply for the provisional waiver—a request that, in practice, is often procedurally impossible. Now, with the “conditional I-212” process, many more undocumented immigrants with U.S. citizen or legal resident spouses or parents will have the opportunity to legalize their status under U.S. immigration regulations.

If you or a loved one believes you may benefit from these new regulations, don’t hesitate to contact an experienced immigration attorney.