Waivers help undocumented immigrants remain with U.S. family members

In 2014, President Obama issued an executive order expanding a provisional waiver program designed to make it easier for undocumented immigrants to obtain a visa to stay in the U.S. if they have certain family members who are citizens. The measure was intended to help keep families together by allowing certain individuals to adjust status without leaving the country.

What does the waiver program do?

When people enter the United States without documentation or remain in the country after their authorization has expired, it is referred to an unlawful presence. Normally, people who have accrued a certain period of unlawful presence in the U.S. are ineligible to obtain legal status without first leaving the country for a number of years, even if they are otherwise eligible for a visa or green card.

Existing law provided that waivers were available under certain circumstances of extreme hardship, but applicants were required to leave the U.S. to apply for a waiver in their home country, putting them at risk of being barred re-entry for up to 10 years if their waivers were denied.

As a result, undocumented immigrants seeking legal status in the U.S. may be separated from their families for several years while they wait to become eligible for a visa. The provisional waiver program allows certain undocumented immigrants to obtain legal status without having to leave the United States first, thereby helping families stay together and minimizing hardship for the U.S. citizens and permanent residents whose immediate family members would be required to leave.

Who can obtain a provisional waiver for unlawful presence?

Only certain individuals are eligible to participate in the provisional waiver program. As a baseline matter, the program is open only to undocumented immigrants who have an immediate family member who is a U.S. citizen or lawful permanent resident (green card holder).

Specifically, this means that the person seeking the waiver must be the spouse, child or parent of a U.S. citizen or lawful permanent resident. Additionally, the individual seeking a waiver must demonstrate that his or her absence would cause extreme hardship for the qualifying immediate relative.

Uncertain future of waiver program means swift action is essential

Although the waiver program has been highly successful, its future is uncertain because of the manner in which it was enacted. Some critics of the waiver program contend that the President exceeded his authority when he issued the order and have sought to have it overturned. Therefore, people seeking protection under the new law should act quickly to obtain legal advice and begin the process of pursuing a provisional waiver for unlawful presence.