Family Unity Provisional Stateside Waiver Process for Unlawful Presence Goes Into Effect March 4, 2013

On January 2, 2013, DHS Secretary Janet Napolitano announced welcome news of a final rule regarding the proposed provisional or stateside waiver of the unlawful presence bar. Scheduled to become effective March 4, 2013, the new waiver process will potentially help countless immediate relatives of US Citizens subject to the unlawful presence bar avoid lengthy delays associated with waiver processing abroad, as is currently the case. Under the new process, affected individuals will be able to file the I-601A Application for Provisional Unlawful Presence Waiver and receive a provisional decision here in the United States before returning to their home countries to complete the consular process. It is important to note that the provisional waiver process applies only to immediate relatives of United States Citizens who are inadmissible solely on account of unlawful presence and who can demonstrate extreme hardship to his/her US Citizen spouse or parent. In other words, applicants must still file for a waiver of the unlawful presence bar. Approval is hardly automatic, and more must generally be shown than disconsolation or grief over separation. Moreover, should the individual be deemed inadmissible for any other reason, i.e., misrepresentation in applying for an immigration benefit or a criminal record, he/she will not be able to avail themselves of the process. Also, unfortunately, those who are preference category relatives are not eligible at this time to apply under the process. Nevertheless, the new process promises to reduce waiting times dramatically, and by granting provisional approvals to qualified applicants, will hopefully help allay the uncertainty and fear of apprehensive individuals who are not eligible to adjust status and who must return to their countries to consular process, unsure of whether they will be able to come back.

Check back regularly, as we will post future information about the process once more details are released, as well as future articles discussing the three and ten year bars.