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On January 2, 2013, the U.S. Citizenship and Immigration Services (USCIS) announced the publication of the final regulation concerning the new provisional unlawful presence waiver process.  The new regulation will promote family unity by allowing certain relatives of U.S.Citizens to remain in the United States while their unlawful presence waivers are being adjudicated.  The final regulation will be published on January 3, 2013.  Please note that this new process is not yet in effect and the USCIS will not accept any applications until March 4, 2013. 

Individuals who have accrued extensive periods of unlawful presence in the U.S. are barred from returning to the U.S. for aslong as 3 or 10 years if they leave the country.  Certain individuals can apply for a waiver of the unlawful presence bar if they can show that the denial of the waiver will cause a U.S.citizen or LPR spouse or parent to experience extreme hardship.  The waiver can only be granted if the case warrants a favorable exercise of discretion by the USCIS. 

Under the current process, an immigrant visa applicant who will be subject to the unlawful presence bar has to depart the U.S. and attend a consular interview, before being able to apply for a waiver.  The relative then has to wait many monthsuntil the waiver is adjudicated, before being able to attend a second interview at the consulate to complete the immigrant visa process and return to the U.S.  Thus, under the current process, U.S. Citizenshave to suffer unnecessarily long periods of separation while family members gothrough consular processing abroad to obtain immigrant visas and await the approval of their waivers.

    Underthe new process, immediate relatives of U.S.Citizens who will be subject to the unlawful presence bar can apply for awaiver and await its adjudication before they have to depart the U.S.  Once the provisional waiver application isapproved, the applicant must still depart the U.S. and attend a consularinterview abroad, before an immigrant visa can be issued.  However, the new process lessens the lengthof separation and encourages family unity while the waiver application ispending.  

    TheUSCIS will publish a new Form I-601A to be used for provisional waiverapplications.  The form and supportingevidence can be filed on or after March 4, 2013, and only after the NVCimmigrant visa processing fees have been paid. The Department of State’s National Visa Center (NVC) must be advised ofthe applicant’s intention to pursue the provisional unlawful presencewaiver.  If an individual has alreadybeen scheduled to appear at a U.S. Embassy or consulate for an immigrant visainterview, and the Department of State acted to schedule the interview before January 3, 2013, heor she cannot apply for a provisional unlawful presence waiver, but must insteaddepart the U.S. to attend the interview and then file the Form I-601 fromabroad.

    It isvery important to understand that the new process is only limited to certainrelatives of U.S.Citizens (spouses, children and parents), but it does not apply to otherrelatives.  Also, only relatives of U.S. Citizenscan take advantage of the new process, but not relatives of LPRs.  Note that there is a difference betweenhaving a qualifying relative for purposes of the new process and having aqualifying relative for purposes of proving extreme hardship to be eligible forthe waiver.  For example, while parentsof U.S.Citizens can take advantage of the new process, they must prove extremehardship to a U.S. Citizen spouse or parent, because a U.S. Citizen child isnot a qualifying relative for purposes of unlawful presence waivereligibility. 

    Further,the new process is not applicable to individuals who are subject to anyadditional grounds of inadmissibility other than unlawful presence.  For example, individuals subject to a finalorder of removal or individuals who will need a waiver for crimes of moral turpitudewill not be able to take advantage of the new waiver process.  Individuals not eligible to file a waiverunder the new process can still file a waiver under the existing regulations,by departing to attend a consular interview abroad and then filing the waiverfrom abroad. 

     Waiversof inadmissibility grounds are major undertakings and as such it is veryimportant to consult with experienced counsel before departing the U.S. and beforemaking any immigration filings.