AS OF March 4, 2013 certain immigrant visa applicants who are the spouses, children and parents of US citizens (“immediate relatives”), who have been unlawfully present in the United States, can start applying for provisional unlawful presence waivers through a new, Stateside “Provisional Waiver” process.
The new provisional waiver process is for certain individuals who seek a waiver of inadmissibility only for “unlawful presence” also known as the “3 and 10 year” bars. These applicants can now apply for a provisional unlawful presence waiver while still in the United States and before departing for their immigrant visa interview at a US Embassy or Consulate abroad. Under the current process, which continues to remain in effect, immediate relatives of US citizens who are not eligible to adjust status in the United States have to travel abroad and be found inadmissible at their immigrant visa interview before they can apply for an inadmissibility waiver.
In 1996, Congress overhauled the Immigration & Nationality Act (“INA”) by adding many new grounds of inadmissibility to and removability from the United States. Among the more controversial grounds of inadmissibility was the 3 year bar from admission for any person who has previously been “unlawfully present” in the US for a period in excess of 180 days, and a 10-year bar if unlawfully present for 1 year or more. Departure after accruing the requisite period of unlawful presence triggers the bar from readmission, such that persons who are eligible to adjust status in the US, even after having accrued lengthy periods of unlawful presence, are not subject to the bar.
Those persons who have an immigrant visa available to them, but who are ineligible to adjust status in the US, however, must make a difficult decision to leave the US and their loved ones behind to apply for a waiver in conjunction with their immigrant visa application at the US Embassy or Consulate in their home countries. This is true for many “immediate relatives” of US Citizens, which includes spouses and parents of US Citizens, who did not enter the US legally or do not qualify for an exemption from the legal admission requirement under Section 245(i), which lapsed on April 30, 2001.
Unfortunately, the new waiver procedure will only apply to applicants who can show that their US Citizen spouse or parent would suffer extreme hardship if they are not readmitted and will not apply to family members of lawful permanent resident petitioners and will not include immediate relatives if their qualifying relative for the hardship waiver is not a US citizen spouse or parent. In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a US citizen, inadmissible only due to “unlawful presence,” and demonstrate the denial of the waiver would result in extreme hardship to his or her US citizen spouse or parent. immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
