DHS Starts New Provisional Waiver Process for Immediate Relatives of U.S. Citizens March 4

On January 2, 2013, Department of Homeland Security (DHS) Secretary Janet Napolitano 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. When DHS announced this potential change in the waiver process in January 2012, many applicants failed to appear for their immigrant visa interviews in the hope of using the new process. Now those applicants can be expected to resurrect their applications.

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.

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 abroad and remain with their families in the U.S. while a decision on the waiver application is pending.

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.

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.