On July 29, 2016, Department of Homeland Security (DHS) published the final rule expanding the provisional unlawful presence waiver to all who are eligible for a waiver of the unlawful presence grounds of inadmissibility. Now, beneficiaries of any type of immigrant visa petition, including all the family preference categories, any I-140 whether based on a PERM labor certification or not, as well as winners of the Diversity Visa lottery, will be able to file an I-601A provisional unlawful presence waiver, as long as they have a U.S. citizen or permanent resident parent or spouse who would suffer extreme hardship should they not be allowed to live in the U.S. Those who have only US citizen children will not be able to qualify.
Up to now, only people who were the spouse, parent, or child of a U.S. citizen, with no other ground of inadmissibility were able to apply for provisional unlawful presence waivers. The prior rule prevented many people, including those whose close relatives were permanent residents and not U.S. citizens, and those with a criminal record or disease of public health significance, from being eligible. Now, even if you have an arrest record or some other potential ground of inadmissibility, you may apply for the provisional unlawful presence waiver. Of course, you still must prove eligibility for whatever other waiver you may need. It also eliminates the requirement that the person must not have been scheduled by Dept of State for a visa interview.
People with removal, deportation and exclusion orders will also be eligible for a waiver, as long as they already have an approved I-212, application for permission to reapply for admission into the U.S. They must first obtain a waiver of the bars to re-entry of their prior removal or deportation order. However, individuals outside the U.S. will not be eligible for the expanded provisional unlawful presence waiver.
This will benefit many people in the U.S. who have approved relative or other immigration petitions who were not eligible under the prior provisional unlawful presence waiver.