Many unauthorized family members of U.S. citizens and LPRs could become permanent residents themselves if they left the United States, requested and obtained a waiver of inadmissibility for their unlawful presence in the United States (three- and 10-year bars problem), and then applied for an immigrant visa through a U.S. consulate abroad. This process is uncertain and can take years, during which time the individual is separated from his or her family in the United States.

 

        In 2013, USCIS adopted regulations allowing spouses, minor children, and parents of U.S. citizens to apply for theinadmissibility waiver from within the United States and then travel abroad for consular processing after USCISprovisionally granted the waiver. These changes significantly reduced the time that family members had to remain outside the country and provided more confidence that they would be able to return. Under new DHS guidance,USCIS is directed to adopt a new regulation expanding the family members eligible for the “provisional waiver” process (also known as “stateside processing”) to include adult children of U.S citizens and LPRs and spouses and minor children of LPRs. There is no deadline for the adoption of these new regulations.

 

        The Secretary of Homeland Security also directed USCIS to provide additional guidance regarding the standards for obtaining a provisional waiver. In order to obtain a waiver, a person must demonstrate that his or her absence from the United States would cause “extreme hardship” to a spouse or parent who is a U.S. citizen or LPR. Neither the statute nor the courts have specifically defined what constitutes hardship. The Secretary of Homeland Security stated that “additional guidance about the meaning of the phrase ‘extreme hardship’ would provide broader use of this legally permitted waiver program.”