Proposed Provisional Unlawful Presence Waivers

Reminder: This proposed process is not in effect. To learn more, read this alert.

What USCIS Proposes

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they leave the country. Immediate relatives can obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The immediate relative also would have to show that they warrant a favorable exercise of discretion.   But in order to obtain the waiver, these individuals must depart the United States and wait abroad while the waiver is processed.

Under the current process, therefore, U.S. citizens suffer unnecessarily long periods of separation while family members go through consular processing overseas to obtain an immigrant visa. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process. USCIS believes that this proposed change will streamline the immigrant visa process for immediate relatives whose only ground of inadmissibility is unlawful presence. USCIS plans to adjudicate the provisional waiver application in the United States before the immediate relative departs for his or her immigrant visa interview, which will reduce the length of time immediate relatives must spend abroad for consular processing.

What the Proposed Process Would Do

Under the proposed process, immediate relatives of U.S. citizens who would need a waiver of unlawful presence in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

An individual may seek a provisional unlawful presence waiver if he or she:

• Is physically present in the United States;
• Is at least 17 years of age;
• Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
• Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
• Is not subject to any other grounds of inadmissibility other than unlawful presence; and
• Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

• Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
• Is subject to a final order of removal or reinstatement of a prior removal order;
• May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
• Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

Allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

• Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
• Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
• The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.

Next Steps

This new process will be implemented only after USCIS publishes a final rule in the Federal Register with an effective date. USCIS will consider all comments received as part of the proposed rulemaking process before publishing the final rule. The current waiver process remains in place and will continue to remain for those who may not be eligible for a provisional waiver.

DO NOT file an application or request a provisional waiver at this time. Any applications filed with USCIS based on this NPRM will be rejected and the application package returned to the applicant, including any fees, until the final rule is issued and the change becomes effective.

Update: Please listen to USCIS public service announcment (also available in Spanish) and check out thier flyer to get the facts on the Proposed Provisional Unlawful Presence Waivers and how to avoid scams.

This page can be found at: http://www.uscis.gov/provisionalwaiver