Immediate Relatives of U.S. Citizens May Soon Apply for Provisional Unlawful Presence Waivers in the United States

According to a final regulation, published on January 3, 2013, the U.S. Citizenship and Immigration Services (USCIS) has established a new process for certain individuals to apply for provisional unlawful presence waivers within the United States. Beginning March 4, 2013, USCIS will begin accepting applications for provisional waivers of unlawful presence from certain immediate relatives of U.S. citizens who entered the United States without inspection, or are otherwise ineligible to adjust their status in the United States due to unlawful presence, and must apply for immigrant visas (“green cards”) abroad in order to be admitted as lawful permanent residents.

The challenge faced by these foreign nationals is that, if they have accrued more than 180 days of unlawful presence, departing the United States for consular processing of their immigrant visa applications abroad triggers an automatic three- or ten-year bar against re-entry. Moreover, while a request to waive the unlawful presence ground of inadmissibility was previously available to these foreign nationals only when filing their immigrant visa applications overseas at a U.S. consulate or embassy,  given that the adjudication of waiver requests can take several months, waiver applicants were required to endure long periods of separation from family members.

The new rule permits immediate relatives to seek a waiver of unlawful presence through USCIS and obtain their waivers before departing the United States and traveling abroad to attend an immigrant visa interview. The final regulation is intended to enhance the processing of waiver applications and lessen the burden faced by immediate relatives and their families by allowing waiver requests to be processed within the United States, thus reducing the periods of separation during the application process.

Provisional Waiver Limitations

The new provisional unlawful presence waiver is only available to a limited category of eligible foreign nationals. Further, as noted above, waiver applicants must still depart the United States to complete the immigrant visa application process abroad. Moreover, the provisional waiver is limited to unlawful presence bars to re-entry; foreign nationals seeking a waiver of any other ground of inadmissibility must follow the regular waiver procedures. A waiver applicant must also demonstrate that refusal of his or her admission as a lawful permanent resident would cause “extreme hardship” to a U.S. citizen spouse or parent. Extreme hardship is based on a totality of the circumstances that cannot be reduced to a single list of factors.

Ogletree Deakins is monitoring the implementation of this new regulation and will provide additional information as it becomes available.