Business Immigration Insights

On January 3, 2013, DHS announced publication of its final rule for certain spouses, children and parents of U.S. citizens to obtain provisional waivers of unlawful presence from within the United States, prior to leaving in order to apply for required immigrant visas at US consulates in their home countries.  The new rule and procedures will become effective on March 4, 2013.

Under current U.S. immigration law, relatives of U.S. citizens who entered the country illegally may not apply for green cards from within the United States, but instead must apply at a U.S. consulate or embassy in their home county.  Those who have been unlawfully present for at least six months may not return for three years, unless they first obtain waivers by showing that their U.S. citizen relatives will suffer extreme hardship.  Those who have been unlawfully present for one year or more face a ten-year bar to returning.

Because, under current procedures, these relatives must first apply for, and be denied, immigrant visas before they can even file their waiver applications at U.S. consulates, they are separated from their families for many years, awaiting approvals; some also face dangerous, even deadly, conditions in their home countries.  The new “stateside waiver” process is designed to dramatically reduce waiting times abroad for eligible relatives so they may rejoin their U.S. families sooner.  Those who are not eligible must continue to follow existing procedures.

Family members are eligible if they:  (1) are currently in the United States; (2) are at least seventeen years old; (3) have approved I-130 petitions; (4) have already paid their immigrant visa fees to the Department of State; and (5) meet all other waiver requirements.  Most people with criminal issues of any kind will not be eligible.

Prior to the effective date of March 4, 2013, U.S. Citizenship and Immigration Services will release a new waiver form – the Form I-601A Application for Provisional Unlawful Presence Waiver – and announce further procedural details.