Effective March 4, 2013, the Secretary of the Department of Homeland Security (DHS) will institute the new process it created that will allow immediate relatives (intending immigrants who are the spouses, children and parents of U.S. citizens) to apply for a provisional unlawful presence waiver while they are still in the United States and before departing for their immigrant visa interviews abroad.1
Under the old unlawful presence waiver procedure, immediate relatives who entered the U.S. without permission/inspection (EWI) could not apply for their green card/lawful permanent residency in the U.S. unless their case fit within limited legal exception(s) to the general rule.2 These individuals had to travel abroad to obtain an immigrant visa/green card from the Department of State (DOS) before they could return to the U.S. and be admitted as a lawful permanent resident. Leaving the U.S. usually resulted in the risk of a ten (10) year bar to re-entry if the applicant was in the U.S. unlawfully for over a one (1) year period before departing. The applicant had to apply for and obtain approval of a waiver while outside the U.S. if (s)he wanted to come back to the U.S. before the ten (10) period. If this waiver was denied, the applicant could not return to the U.S. for at least ten (10) years.
Effective March 4, 2013, under the new procedure, the immediate relative applicant may now file the waiver application with the USCIS while (s)he is still living in the U.S. Once the waiver application is approved, the applicant/immediate relative may then travel abroad to complete the immigrant visa process. It is expected that this new process will result in a substantial decrease in the lengthy separation of U.S. families that occurred under the old procedure.
Beware. Not everyone qualifies for the provisional unlawful presence waiver. In addition, departing the U.S., even with an approved waiver, may result in years of separation from loved ones if other factors come into play which make the applicant/immediate relative inadmissible (e.g. not eligible for an immigrant visa.) For instance, the applicant may have certain criminal convictions or a prior removal/deportation order causing additional complications and problems for the case. In such a case, re-entry to the U.S. in a timely manner may not be an option.
Following are just a few of the requirements for the waiver application, not a complete list: the applicant must be physically present in the U.S. when the application is filed; (s)he must be at least 17 years old; (s)he must be the beneficiary of an approved immigrant visa petition classifying him or her as an immediate relative; and (s)he must have an immigrant visa case pending with the DOS for which all the processing fees have already been paid. On the other hand, the applicant may not be eligible for the waiver if, to name just a couple of examples: (s)he has a pending Form I-485 (adjustment of status application) with the USCIS; and/or (s)he has an outstanding order of removal or deportation from an immigration judge.
In addition to other factors, the provisional unlawful presence waiver process: does not give the applicant lawful status in the U.S. while (s)he is waiting approval of the waiver; (s)he may still be deported or removed from the U.S. at any time under the current immigration laws and policies; it does not give the applicant permission to work while waiting in the U.S. for waiver approval; and does not guarantee that if the applicant leaves the U.S. after the waiver is approved that they will qualify for visa issuance or admission back to the U.S.
There are many factors which must be consider before deciding to file this waiver with the USCIS. If the waiver is filed and approved, the applicant must still question whether they should depart the U.S. in hopes of a rapid return.
1AILA InfoNet Doc. No. 13011041.
2Example: the applicant qualifies under another area of the Immigration and Nationality Act (INA) such as, but not limited to INA 245(i), they are a victim of domestic violence or certain other crimes (VAWA, U visa status), TPS, asylum, ect…