Another change to the immigration policy after President Barack Obama's announcement on executive action affects the provisional waiver program. Department of Homeland Security (DHS) Secretary Jeh Johnson issued a memorandum on the expansion of the waiver program to reflect immigration policy changes.  The following is a summary of the homeland security memo.

Current U.S. immigration law provides that some undocumented individuals who are spouses and children of U.S. citizens and lawful permanent residents (LPRs), who may be eligible for an immigrant visa, are required to apply for those visas outside of the U.S.  If they are in the U.S., they have to leave the country and seek out a visa from a U.S. consulate abroad.  However, if the individuals have been in the U.S. unlawfully for more than 6 months, upon leaving the country they are barred by law from returning for a period of 3 or 10 years.

There is an exemption to the 3 and 10-year bar from re-entry to the U.S.  If an individual can demonstrate that absence from the U.S. would impose an extreme hardship to a U.S. citizen, or lawful permanent spouse or parent, they may seek a waiver of the bar.  As of January 2013, DHS provided a regulation to allow some of these individuals to apply to the United States Citizenship and Immigration Services (USCIS) for waiver before departing for a consulate interview abroad.  This pre-departure application waiver extended only to the spouses and children of U.S. citizens.

Under the president's executive orders, the 2013 regulation will be expanded to include all statutorily eligible classes of relatives for whom an immigrant visa is immediately available.  Therefore, any individual who is eligible for an immigrant visa as a relative of U.S. citizen or LPR, may apply for an extreme hardship waiver.

To be granted a waiver, the individual applicants must show that their absence from the country would cause “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent.  This will allow applicants some level of certainty that they will be able to return after successful completion of the consular interview, and not be required to wait out lengthy overseas approval.

The memo also seeks to clarify the meaning of the phrase, “extreme hardship.”  The term is not defined by statute, and federal courts have not specifically defined the term through case law.  Secretary Johnson has directed USCIS to clarify what might constitute “extreme hardship.”  Under direction, the USCIS should determine what factors should be considered, to include:

• family ties to the United States and the country of removal;

• conditions in the country of removal;

• the age of the U.S. citizen or LPR spouse or parent;

• the length of residence in the U.S.;

• any relevant medical and mental health conditions; and

• financial or educational hardships.

USCIS is also directed to consider criteria by which a presumption of “extreme hardship” may exist.

While USCIS has yet to provide specifics on what might be considered “extreme hardship”, the immediate and practical impact of this provisional waiver expansion is that many more people may be eligible to apply for the hardship waiver without having to leave their families in the U.S. in order to apply for an immigrant visa abroad.  The purpose behind the announcement, according to Secretary Johnson remains the same as the purpose behind the 2013 waiver regulation, for family unity.

The full memorandum can be found here.