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Stateside Processing of Unlawful Presence Waiver

by: Justin Burton

Update on the Proposed Rule Change for Provisional Unlawful Presence Waivers for Certain Immediate Relatives of U.S. Citizens

On March 30, 2012, the Department of Homeland Security (DHS) proposed changes to the existing waiver process that would allow certain immediate relatives (spouse, children or parents of a U.S. citizen) who can demonstrate extreme hardship to a U.S. citizen spouse or parent to receive a provisional waiver of the unlawful presence bars before leaving the United States.

Under the current process, 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 and that they warrant a favorable exercise of discretion. However, in order to obtain the waiver, these individuals must depart the United States to apply and must wait abroad while their application is processed.

The proposed rules would allow a return to the United States within a shorter period of time than under the current waiver process, only requiring an individual who receives a waiver to leave the United States to attend their immigrant visa interview with a DOS consular officer. This proposed process will not affect an individual’s current immigration status and all eligible individuals 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.

Under this proposed rule, an individual qualifies 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.

A final rule on this proposed rule change has not been published and applications or requests for these waivers are not being accepted at this time. While the current waiver process remains in place and will continue to remain for those who may not be eligible for a provisional waiver, this proposed rule will significantly benefit thousands of waiver applicants in the United States by providing a greater assurance of success before they travel to a consulate for their immigrant visa interview. For additional detailed information regarding this proposed rule change, please visit the Government website: www.uscis.gov/provisionalwaiver.

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