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Provisional Waiver Program Still Available Under Trump Administration

The Department of Homeland Security published a regulation on January 3, 2013, to allow the immediate relatives of United States citizens, who came to the country without inspection or were not eligible to change their current immigration status due to unlawful entry and presence, to apply for a provisional waiver in the United States.

The idea behind the program is to keep families from being separated for months or years. With this program, family members will receive a provisional waiver approved by the United States Citizen and Immigration Services (USCIS) before leaving the United States. The individual will then be interviewed by the consulate in their country for their green card and then return to their families in the United States soon after.

The benefit of a provisional waiver for green card applicants, afraid of leaving the United States for a consular visa interview due to the fear of being able to re-enter the United States, are told by USCIS yes or no before departing from the United States. Receiving a clear answer from USCIS before leaving the U.S. prevents individuals from being stuck in their country of origin for an extended period while their family remains in the United States.

In 2016, the eligibility requirements for a provisional waiver were expanded upon. Anyone who is eligible for an immigrant visa may apply for a provisional unlawful presence waiver. An individual must be at least 17 years old, present in the U.S. at the time of applying, admissible to the U.S., are the beneficiary of an approved petition (I-130, I-140 or I-360) and prove that a qualifying relative (which includes spouses or parents who are green card holders or citizens) will face extreme hardship if the waiver is not granted. A person is eligible to apply for a provisional waiver even during removal proceedings.

A provisional waiver is still a viable option even with President-Elect Trump is in power. The provisional waiver was created by regulation. To change a regulation, a President must publish proposed changes and allow for a period of public comment. It takes months to complete. So, even if on January 20, 2017, Trump’s new administration proposed new regulations to take away provisional waivers, it would take months before his intended changes came to fruition. Moreover, he has been a proponent of non-citizens leaving to process green cards.

To understand more about provisional waivers or to learn about what immigration options are available to you or your loved ones, contact the knowledgeable attorneys at Bretz & Coven LLP today at 1 (212) 267-2555 or to schedule a consultation at our New Jersey immigration law offices call 1 (732) 313-0075.

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