DHS Starts New Provisional Waiver For Immediate Relatives Of U.S. Citizens

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On January 2, 2013, Department of Homeland Security announced the posting of a final rule in the Federal Register that allows certain immediate relatives of U.S. citizens who are physically present in the U.S. to apply for a provisional unlawful presence waiver from within the U.S.
Discover The Provisional Pardon That DHS Granted To Immediate Relatives Of U.S. Citizen Relatives

BACKGROUND – Under the current law, immediate relatives of U.S. citizens (children, spouses and parents) who are not eligible to adjust status in the U.S. to become lawful permanent residents must leave the U.S. and obtain an immigrant Visa abroad. Individuals who have accrued more than six months of unlawful presence while in the U.S. must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can obtain an immigrant Visa to return to the U.S. This process can take from several months to a year or longer to return to the U.S.

NEW PROCESS – Under the new provisional waiver process, immediate relatives must still depart the U.S. for the consular immigrant Visa process, however, they will be able to apply for a provisional waiver (only as to certain unlawful presence inadmissibility grounds) before they depart for their immigrant Visa interview in their home country and can remain with their families in the U.S. while a decision on the waiver application is pending. Meaning the time necessary to remain outside the U.S. is reduced to days or a couple of weeks.

ELIGIBILITY – In order to be eligible to apply for the waiver under the new regulations, the applicant must:

  • Be an immediate relative of U.S. Citizen (spouse, child, parent);
  • Be the beneficiary of an approved immediate relative petition;
  • Be 17 years of age or old or older;
  • Be present in the U.S. at the time of filing the application for a provisional waiver and for biometrics collection at a USCIS Application Support Center;
  • Have a case pending with the Department of State (DOS) based on the approved immediate relative petition and has paid the immigrant Visa processing fee; and
  • Show extreme hardship to his or her U.S. citizen spouse or parent.

Upon departure from the U.S., the applicant will be subject to the unlawful presence ground of inadmissibility only. If additional waivers for other grounds of inadmissibility are required, the applicant will not be eligible to use the provisional waiver process.

In addition to these eligibility requirements, the Department of State must not have acted to schedule the immigrant Visa interview for the applicant before the publication of date of the final rule in the Federal Register, January 3, 2013.Those ineligible to file under this rule may still be able to file a provisional waiver, for example, if a new I-130 relative petition is filed with USCIS by a different petitioner on their behalf.

EFFECTIVE DATE – The new process will become effective on March 4, 2013. The filing fee is $585 for the I-601A provisional waiver form. No filings will be accepted by USCIS before this date. The projected processing time for the waivers will be approximately four-six months.

About Alfredo Lozano

alfredo lozano of lozano law firm inAlfredo Lozano is the founder and principal attorney at Lozano Law Firm, an immigration law firm serving the communities of San Antonio, Eagle Pass, Laredo and San Angelo in business and family-based immigration law. Mr. Lozano is a member of the State Bar of Texas, the San Antonio Bar Association, and the American Immigration Lawyers Association.

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