Changes proposed to allow more immigrants to ask forgiveness of punishment law

Thousands of immigrants could benefit if a new proposal is approved that seeks to modify the requirements to apply for a provisional waiver of the "punishment law" within the United States.

The "punishment law" penalizes certain undocumented immigrants for having lived in the United States illegally, prohibiting them from returning to the country for 3 or 10 years.

U.S. Department of Homeland Security (DHS) announced yesterday that he is proposing to expand eligibility for provisional waivers of inadmissibility, allowing more foreign nationals to apply for a waiver for living in the United States illegally and know whether they will qualify for it before they leave the country.

Currently, only undocumented immediate relatives of U.S. citizens - whether parents, spouses, and unmarried children under the age of 21 - qualify to apply for a provisional waiver of the penalty law. In addition, the immigrant must demonstrate that denying permanent residence would result in extreme hardship to a U.S. citizen spouse or parent.

Benefits of the new proposal

The new DHS proposal would allow for the inclusion of all aliens who are eligible to apply for provisional waivers, including beneficiaries of Alien Relative Petitions, Amerasian, Widow(er) or Special Immigrant Petitions, Alien Immigrant Worker Petitions, and persons selected by the Diversity Visa Program (visa lottery).

In addition, it would extend the provisional waiver of the penalty law to eligible aliens applying for immigrant visas if they can demonstrate that it would cause extreme hardship to their U.S. citizen or permanent resident spouse or parent if their application is denied.

The new proposal would reduce the time of family separation while the procedure is being carried out.

What is the process to get the proposal approved?

Before the changes can be implemented, it requires a process during which the public has the right to comment on the proposal. Then, U.S. Citizenship and Immigration Services (USCIS) reviews all comments and publishes a final rule.

From the time the proposal is published in the Federal Register, the public will have 60 days to submit comments.

How the new process would work

If the proposal is approved, USCIS would review the case while the provisional waiver applicant is in the United States. If deemed valid, it would grant a provisional waiver.

The undocumented immigrant will then be required to travel to his or her home country to be interviewed by a consular officer. If no problems are detected, the permit will be confirmed and the person could return to the United States with an immigrant visa.

How the law of punishment works

Unless covered by 245(i), persons who entered the United States legally or illegally and are currently undocumented in the country are eligible to apply for permanent residence, but must leave the country to seek an immigrant visa in their country of origin.

But if they were in the U.S. illegally, they are subject to the "penalty law" which prohibits them from re-entering the country for a period of 3 to 10 years. However, there are exceptions to this rule.

The government may grant a waiver for having lived in the United States illegally, known as a "3-10-year bar waiver".

If the waiver is requested abroad, the waiver applicant must show that if his or her immigrant visa application is denied, it would cause "extreme hardship" to his or her spouse or parents who are U.S. citizens or permanent residents. The hardship may be economic, health, or humanitarian, among others.

How long does the process of forgiveness of the "law of punishment" take?

Currently, it takes approximately 6 months for USCIS to evaluate a "law of punishment" waiver application filed abroad.

While the waiver application is pending, the person who requested the waiver must remain outside the United States until the federal government authorizes his or her return to the country.

When the proposal will come into force

DHS seeks to implement this new measure quickly, possibly within the next 12 months.

Remember, it must first be submitted for a public comment period, which takes 60 days. DHS must review those comments before it can publish a final rule. This process will also take some time.


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