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Old 04-23-2013, 08:52 PM
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Default New Waiver Rule Supports Family Unity

On March 4, 2013, the U.S. Citizenship and Immigration Services (USCIS) put into effect a new regulation that reduces the time U.S. citizens are separated from their immediate relatives (spouses, children or parents), who are in the process of obtaining visas to become lawful permanent residents of the United States overseas. The new rule establishes a process that allows certain individuals who are in the United States but are ineligible to adjust their status here to apply for and receive a provisional unlawful waiver prior to departing the U.S. for their immigrant visa interview in their country of origin.

Under prior law, immediate relatives of U.S. citizens who were not eligible to adjust status in the United States to become lawful permanent residents were required to leave the U.S. and obtain an immigrant visa through the U.S. consulate in their country. Individuals who stay unlawfully in the United States for more than six months are considered “inadmissible” and must apply for a waiver, which if granted, will excuse their inadmissibility due to their prior unlawful presence in the United States. Under the prior waiver process, immediate relatives could not file a waiver application until after they appeared for an immigrant visa interview at the consulate. After filing the waiver application, they were required to remain abroad while their waiver applications were pending. This meant being away from their U.S. citizen loved ones for months, if not years, and in some cases, it meant being subjected to difficult or dangerous circumstances in their native countries.

The new provisional unlawful presence waiver marks a significant departure from the previous way of handling the residency process in these matters. Under the new regulations, immediate relatives of United States citizens have the opportunity to apply for the waivers of unlawful presence in the United States, without first leaving the country. If said waivers are approved, the applicants must still travel abroad to apply for their immigrant visas, but the time away from their families will be very short.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen – that is, the spouse, parent or child of a U.S. citizen, who has an approved visa petition and who is inadmissible only on account of their unlawful presence in the United States. The applicant must be actively pursuing an immigrant visa application, and must have paid the Department of State immigrant visa processing fee. In support of the waiver application, the applicant must demonstrate that the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.

As the residency and waiver application process is complex and the question of whether or not one may be eligible for the new provisional waiver process requires legal analysis, it is recommended that applicants seek professional legal advice before filing any application with USCIS. At Levit Immigration Law Group, we understand the complexities of U.S. immigration laws and their consequences on families. We have extensive experience in all matters of U.S. immigration and citizenship laws and are glad to offer our assistance. Contact Levit Immigration Law Group today and schedule your free consultation.

This article provides basic information in the area of U.S. immigration law and is intended for general informational purposes only. It is not a substitute for legal advice, nor does it constitute any legal opinion by the author. This article is not fully inclusive; does not address all applicable laws including case interpretation; and may be subject to change as new laws and regulations are enacted.

Written by Orit Levit, an Immigration Lawyer.
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