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Federal Government Expands Waiver Program for Certain People Deemed Unlawfully Present in the U.S.

red markerUndocumented immigrants who meet certain criteria can apply for waivers allowing them to proceed with an immigrant visa petition. One type of waiver is known as a “provisional unlawful presence waiver” (PUPW). Individuals with six months to one year of accrued unlawful presence in the U.S. who voluntarily depart the U.S. are deemed inadmissible for a period of three years. A PUPW allows a person who meets these criteria to request a waiver of the three-year inadmissibility period, provided they leave the U.S. and apply to reenter at a U.S. consulate abroad. A new rule that took effect at the end of August 2016 streamlines the application process and expands eligibility for PUPWs. 81 Fed. Reg. 50243 (Jul. 29, 2016). Previously, PUPWs were only available to people seeking family-based immigrant visas. The new rule makes them available for employment-based and other visa petitions.

To qualify for a PUPW, an individual must be inadmissible under § 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(9)(B)(i)(I). This provision applies to people (1) who have been unlawfully present in the U.S. for more than 180 days but less than one year, (2) who voluntarily depart the country, either on their own or with the government’s permission under 8 U.S.C. § 1229c, (3) prior to the beginning of removal proceedings under 8 U.S.C. §§ 1225(b)(1) or 1229a.

People covered by this provision of the INA are ineligible for readmission for three years, beginning on the date they leave or are removed from the U.S. The PUPW waives the six- to 12-month period of unlawful presence, making them eligible for an immigrant visa without the three-year bar.

DHS first created the PUPW in 2013. 78 Fed. Reg. 535 (Jan. 3, 2013), 8 C.F.R. § 212.7(e). It significantly reduced the amount of time people had to wait on a waiver decision, as well as the amount of time they were separated from their families in the U.S. Prior to the recent rule changes, however, an applicant had to be “the beneficiary of an approved immediate relative petition” to qualify and could not have been in pending removal proceedings. Id. at §§ 212.7(e)(3)(iv), (4)(5).

The new rule allows people involved in removal proceedings to apply for a PUPW, and it expands eligibility beyond immediate relatives “to include all beneficiaries of approved immigrant visa petitions” who meet all the other eligibility requirements. 81 Fed. Reg. at 50249. This includes all other family-based immigrant visa categories, employment-based immigrant visas, and diversity lottery visas.

Employment visa attorney Samuel C. Berger represents people who plan on immigrating to the New York City and Northern New Jersey region, or who have already made this area their home. We help businesses and families petition for visas to bring employees or loved ones to the U.S. To schedule a confidential consultation with a member of our team, contact us today online, at (201) 587-1500, or at (212) 380-8117.

More Blog Posts:

New Law Mandates Changes to Visa Waiver System, New York & New Jersey Immigration Lawyer Blog, March 10, 2016

Travel Outside the U.S. for DACA Recipients Remains Tricky, New York & New Jersey Immigration Lawyer Blog, May 13, 2015

Immigration Authorities Expand Prosecutorial Discretion Policies to Include Same-Sex Relationships, New York & New Jersey Immigration Lawyer Blog, November 23, 2012

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