Provisional Unlawful Presence Waiver Process For Immediate Relatives Of U.S. Citizens Announced

Secretary of Homeland Security Janet Napolitano has announced the posting of a final rule that will, under certain circumstances, reduce the time U.S. citizens are separated from their immediate relatives -spouse, children and parents – who are in the process of obtaining immigrant visas to become lawful permanent residents of the U.S.

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. And, individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa.

Under the existing waiver process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad.

The new final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. In order to obtain a provisional unlawful presence waiver, the applicant must:

  • be an immediate relative of a U.S. citizen,
  • be inadmissible only on account of unlawful presence, and
  • demonstrate the denial of the waiver would result in extreme hardship to the U.S. citizen.

USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The process will be effective on March 4, 2013 and it has been announced that more information about the filing process will be made available in the coming weeks.

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