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Immigration Explores Expanding Hardship Waivers

Starting July 15, 2015, U.S. Citizenship & Immigration Services began seeking public comment on the much-anticipated proposed expansion of eligibility for the widely successful Provisional Unlawful Presence Waiver program. On November 20, 2014, President Obama announced a series of executive actions to help alleviate our overburdened immigration system and to appease the immigrant population who, over the past six years of his presidency, has been promised a change in our country’s immigration laws. Although some of those executive actions are currently caught in a quagmire of litigation, it appears as though one of those proposed changes was not affected by the lawsuit filed by the state of Texas against the federal government and may soon be available to those who qualify.

The Provisional Unlawful Presence Waiver program, which first commenced on March 4, 2013, allowed certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of United States citizens, to apply for a provisional unlawful presence waiver before they leave the U.S. for their consular interview. Prior to this program, any foreign national who was present in the U.S. without lawful status for more than 180 days but had a pending immigrant visa application filed by their U.S. citizen spouse or parent, would have to return to their country of origin and wait while their visa application was processed. This process could take many months and had the unfortunate consequence of separating immediate family members for undetermined periods of time. The Provisional Waiver allows the foreign national to remain with their loved one while the immigrant visa application is being processed, and requires the foreign national to leave the U.S. only for their consular interview. To obtain this waiver, the foreign national must first have an immigrant visa immediately available to them from their U.S. citizen spouse, child or parent. Next, the foreign national must demonstrate that a prolonged separation from the “qualifying relative,” a U.S. citizen parent or spouse, would result in “extreme hardship” on that U.S. citizen parent or spouse.

The Provisional Unlawful Presence Waiver program provided assistance for many but excluded several classes of immigrants that would benefit from this relief. The proposed changes for which U.S. Citizenship & Immigration Services is currently taking comment, would allow any foreign national with any immigrant visa immediately available to them, including employment-based visas, diversity visa, or special-immigrant visas, to apply for a provisional waiver of unlawful presence. The proposed changes also expand who may be considered a qualifying relative for purposes of the “extreme hardship” determination to include lawful permanent-resident spouses and parents.

After the 60-day comment period, U.S. Citizenship & Immigration Services will publish the final modifications regarding this highly anticipated change in the law, at which time they will set a date when they will begin accepting applications. If you or someone you know may qualify for the Expanded Provisional Waiver Program, please visit our Immigration 101 page or contact Managing Partner Michael Wildes at [email protected].

* This article is based on information available as of its publication and is not intended to be all-inclusive or to furnish advice in a particular case. We are not responsible for any changes in regulations that may occur subsequent to publication. Please feel free to contact our office for further information and advice.

Michael J. Wildes is the Managing Partner of Wildes and Weinberg, P.C. Mr. Wildes is a former Federal Prosecutor with the United States Attorney’s Office in Brooklyn (1989-1993). Mr. Wildes has testified on Capitol Hill in connection with anti-terrorism legislation and is internationally renowned for his successful representation of several defectors who have provided difficult-to-obtain national security information. He is frequently a legal commentator/analyst for network television. He is an Adjunct Professor at the Benjamin N. Cardozo School of Law in New York and teaches Business Immigration Law. From 2004 through 2010, Mr. Wildes was also the Mayor of Englewood, New Jersey—where he resides. Wildes and Weinberg, P.C. has offices in New York, New Jersey and Florida. If you would like to contact Michael Wildes please email him at [email protected] and visit the firm’s website at www.wildeslaw.com.

By Michael J. Wildes

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