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New eligibility guidelines for the provisional waiver process

Contact the immigration law attorneys at Antonini & Cohen today to discuss your waiver application. Our attorneys can determine whether your criminal history requires a waiver or if you qualify for the provisional waiver, despite your criminal history, under the new guidelines.

For an overview of Waivers of Unlawful Presence, please see my previous blog entry: Waivers of Unlawful Presence – An overview. Since the new provisional waiver program began on March 4, 2013, immediate relatives of US citizens are eligible to apply for their waivers in the US without having to endure a long separation from their families while waiting for a decision outside the US.

What was the issue?

To qualify for a provisional waiver, you must have one, and only one, problem affecting your admissibility to the US – your unlawful presence. If you had additional crimes, fraud, deportations, or other problems, you are not eligible to seek the provisional waiver. If you need additional waivers, you must apply for all your waivers at the same time outside the US. This means being separated from your family for months or even years.

Not every criminal conviction, however, requires a waiver. Thus, a person convicted of a minor crime may only need a Waiver of Unlawful Presence. Until recently, though, the Department of Homeland Security (DHS) ignored that fact. DHS denied every provisional waiver where the foreign national had been convicted of any crime, even if the conviction did not require a waiver and the person still qualified for the provisional waiver. In those cases, the applicant could only apply for the Waiver of Unlawful Presence at a US Consulate abroad.

How has the provisional waiver process changed?

On January 24, 2014, DHS issued new guidance regarding provisional waiver applicants with a criminal history. DHS will now review each conviction to determine whether a crime waiver is required. Now, even if you have a criminal record, you may still qualify for the provisional waiver program if your criminal history does not require a waiver.