Process to extend provisional pardon to punishment law begins

It is now official. The U.S. Department of Homeland Security today released an announcement of its intent to make changes that would allow more immigrants to apply for provisional waivers of the punishment law.

As I explained when the proposal was released a week ago, this is the first step in the process.

In my column This week's Consulta Migratoria® I give more details. You can also watch a video of an interview I did on the subject on Telemundo's "Un Nuevo Día".

Here is the column:

The "punishment law" penalizes undocumented immigrants for living illegally in the United States, prohibiting them from returning for 3 or 10 years if they leave the country.

But a new proposal by the U.S. Department of Homeland Security (DHS), which seeks to modify the requirements for applying for a provisional waiver of the "law of punishment" within the United States, could change the situation for thousands of immigrants.

DHS announced that it is proposing to expand eligibility for provisional waivers of inadmissibility. If approved, the change would allow more aliens to apply for a waiver for living in the U.S. illegally and know whether they would qualify for a waiver before leaving the country.

Currently, only undocumented immediate relatives of U.S. citizens - whether parents, spouses, and unmarried children under the age of 21 - are eligible to apply for a provisional waiver of the penalty law. As part of the process, the immigrant must demonstrate that denial of permanent residency would cause extreme hardship to a U.S. citizen spouse or parent.

Who would benefit from the new proposal

If approved, the new DHS proposal would benefit all aliens eligible to apply for provisional waivers. Beneficiaries of Alien Relative Petitions, Amerasian, Widow(er) or Special Immigrant Petitions, Immigrant Alien Worker Petitions, and those who are selected by the Diversity Visa Program (visa lottery) would qualify for the provisional waiver of the penalty law.

Aliens applying for immigrant visas would also be eligible for provisional waivers if they can demonstrate that it would cause extreme hardship to their U.S. citizen or permanent resident spouse or parents if their application were denied.

A great advantage of the new proposal is that it would reduce the time of family separation while the procedure is being carried out.

When will the proposal be approved?

Before changes to immigration process regulations can be approved and implemented, they must be officially published and undergo a period of public scrutiny.

The DHS published the details of the proposal in the Federal Register (Federal Register) on July 22, 2015. The public has 60 days from that date to comment on the proposal. At the end of that time, DHS reviews all comments and publishes a final rule.

It is important that everyone write to DHS to express their opinion on the proposal. You have until September 21, 2015 to do so. You can send your comments by clicking here.

Once on that page, click on the green button that says "SUBMIT A FORMAL COMMENT" to submit your comments.

DHS is expected to implement this new measure within the next 12 months.

As the proposal has not yet gone into effect, please do not submit any applications requesting a provisional waiver under the new criteria proposed by DHS.

Please note that despite the proposed change, not all persons will be eligible for a provisional waiver of the penalty law.

Please consult with an immigration attorney before beginning the process for permanent residency to be sure you meet all the requirements.

You can find more information about the new DHS proposal, a fuller explanation of the punishment law, the provisional waiver and immigration tips on my blog at

Send your questions to Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States) and presenter of immigration television segments of The Lawyer at Your Side in NY1 News. He is a past President of the Hispanic National Bar Association and current President of the Westlake South Los Angeles Neighborhood Council. For information on how to consult with Dr. Castillo, click here. click here.

The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.