In 1996, Congress decided to punish immigrants who had been unlawfully present in the United States for more than six months and then left the country. Those who had six to twelve months of unlawful presence were made inadmissible to the U.S. for three years after departure, and those with more than a year of unlawful presence were inadmissible for ten years.
Most immigrants who have been here without permission and then acquire a means to immigrate (for example, by marrying an American citizen) therefore face the hard choice of remaining here illegally or returning to the home country to ask for an immigrant visa – and then being barred from using that visa for three or ten years!
Because this harsh penalty could cause harm to American relatives of such immigrants, Congress authorized “waiver” of the 3- or 10-year bars when “extreme hardship” would befall a lawful resident or U.S. citizen spouse or parent of the barred immigrant. However, for many years the only way an alien could apply for that waiver is by first leaving the U.S., applying for an immigrant visa abroad, and only then asking for the waiver.
So immigrants possibly eligible for a waiver had to take the risk of leaving America, incurring the applicable bar, and then hoping that their waiver from abroad is successful; otherwise, they would be stuck out of the U.S., separated from their families for three or ten years.
This requirement (applying for a waiver only outside the U.S.) is not written into the law; it was part of regulations adopted by the Clinton Administration after passage of the law creating the unlawful presence bars and the waiver.
In 2013, the Obama Administration eased this burden by allowing alien parents, spouses, and unmarried minor children of U.S. citizens to apply for these waivers before they depart the United States. If they are issued a “provisional waiver” of the unlawful presence bar, they can then seek an immigrant visa in their home countries more quickly and with much more assurance of a good outcome than before this new rule went into effect.
Now the “provisional waiver” process has been expanded! Beginning September 22, 2016, the process will be available to “aliens in all statutorily eligible immigrant visa categories.” In other words, anyone eligible to apply for an immigrant visa abroad can seek a provisional waiver of the unlawful presence bar before having to leave the U.S.
Among those who could use this provision are spouses and unmarried children of lawful permanent residents, winners of the “diversity lottery,” adult and married children of U.S. citizens, and workers sponsored by their employers for lawful status.
Unlike DACA and DAPA, this change in immigration procedures clearly is something that the U.S. executive branch has power to do on its own, and there is no chance it will be overturned in court. It has the potential to help many thousands of good people obtain lawful resident status.
Of course, this change is far from the comprehensive immigration reform that we need. But it is a good example of a simple administrative change that can positively change the lives of many people. We can applaud the government for doing it, and encourage the government to take many more similar steps.