Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the U.S. must travel abroad and obtain an immigrant visa.
Unlawful presence (UP) from "overstaying" a visa, entering without inspection, or failing to timely depart when ordered to do so bars aliens from returning for 3 to 10 years once they leave the country. Individuals who have accrued more than 180 days of UP while in the U.S. must obtain a waiver of inadmissibility to overcome the UP bars under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) before they can return to the U.S. Because UP is also a ground of inadmissibility, USCs are separated from family who must stay abroad to obtain a waiver or "consular process."
The new provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for UP, to apply for a waiver in the U.S. and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad. This new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family relatives are obtaining immigrant visas to become lawful permanent residents of the U.S.
Who Can Apply?
To be eligible for a provisional unlawful presence waiver you must fulfill ALL of the following conditions:
• Be 17 years of age or older.
• Be an immediate relative of a U.S. citizen.
• Have an approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
• Have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the DOS immigrant visa processing fee.
• Be able to demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
• Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
• Not have been scheduled for an immigrant visa interview by Department of State (DOS) before January 3, 2013.
• Meet all other requirements for the provisional unlawful presence waiver, as detailed in 8 C.F.R. 212.7(e) and the Form I-601A and its instructions.
You are NOT eligible for a provisional unlawful presence waiver if any of the following conditions apply to you:
• You are subject to one or more grounds of inadmissibility other than unlawful presence.
• DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition upon which your provisional unlawful presence waiver application is based, even if your immigrant visa interview has been canceled, you failed to appear for the interview, or your interview was rescheduled on or after Jan. 3, 2013. “Scheduled” means the date on which National Visa Center (NVC) took the action to schedule the case—not the date of the visa interview appointment.
• You are in removal proceedings that have not been administratively closed.
• At the time of filing, you are in removal proceedings that have been administratively closed but have been placed back on the EIOR calendar to continue your removal proceedings.
• You do not meet one or more of the requirements, as outlined in the Form I-601A and its instructions.
What Happens Next?
After you submit your Form I-601A, USCIS will notify the NVC that it received your Provisional Waiver application and NVC will not schedule your immigrant visa interview appointment until USCIS informs NVC of its determination about your I-601A application. If an immigrant visa interview is granted, NVC will schedule it at the U.S. embassy or consulate you designated and notify you of your interview appointment date. You will then need to depart the U.S. to attend your immigrant visa interview at the designated location. If you fail to depart and attend your immigrant visa interview, the provisional unlawful presence waiver will not take effect, and the approval may no longer be valid.
Note: Immediate relatives of U.S. citizens who are eligible for the new provisional unlawful presence waiver can still choose to apply for a waiver using the existing process by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, after a DOS consular officer has determined that he or she is inadmissible to the United States.
For any further inquiries, please contact our office for a consultation.