UPDATE to the Expanded Provisional Waiver Program – Who is NOT Eligible!

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As an update to the newly expanded provisional waiver program that went into effect on August 29, 2016, it is important to clarify who is and is not eligible to file for this waiver.

Specifically, an individual with a final order of removal may now file a 212 waiver of the removal order in the United States, and upon approval, move forward with the provisional waiver application. 

But, it’s not that simple.  There are certain restrictions within this provision as well.  Keep in mind there is a significant difference between voluntary departure and an order of removal.  If an individual is issued an order of removal by the Immigration Judge, they will be eligible for the 212 waiver.  If on the other hand, they accept Voluntary Departure, but fail to depart such that it turns into a final order of removal, that person will NOT be eligible to file a 212 and provisional waiver. 

Further, on the topic of in absentia orders of removal – if a person is subject to an order of removal in absentia, meaning they were not in court when they were ordered removed either because they didn’t receive notice, or they chose not to go, they also will NOT be eligible to file a 212 and provisional waiver if they were put into proceedings after April 1, 1997.  That means anyone who has an in absentia order of removal based on being placed into proceedings before April 1, 1997, will remain eligible for the 212 and provisional waiver option, even if the removal order occurred after April 1, 1997.    

Each of these points are very complicated and the basis for eligibility can vary from case to case, so always important to speak with an immigration attorney regarding your eligibility before moving forward with this process. 

Please contact Danielle M. Claffey at 404.949.8151, or by email at dclaffey@immigration.net with any questions.

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Danielle Claffey


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