On January 2, 2013, the Department of Homeland Security published a new rule that reduces the time that U.S. citizens and certain alien relatives are separated from each other during the immigrant visa process.
Under the traditional process, immigrants who are not eligible to adjust status in the United States are required to travel abroad to obtain immigrant visas. In addition, immigrants who have accrued more than 180 days of unlawful presence in the United States must obtain a waiver before they are allowed to reenter the United States. To obtain the waiver, however, the alien must depart the country, appear at the consulate, and be deemed inadmissible before he or she can request the waiver. The process for obtaining the waiver after being deemed inadmissible often results in extraordinarily long wait times outside the United States.
The new provisional waiver process, which begins on March 4, 2013, allows an immigrant to seek a provisional waiver of the unlawful presence bar while he or she waits in the United States. Although the immigrant must still depart the country for the immigrant visa interview, the provisional waiver, if granted, greatly reduces the wait time outside the country until the family is reunited.
The process is only available to immediate alien relatives of U.S. citizens. The intending immigrant must also be present in the United States. The process is only available for requests to waive unlawful presence issues. Unfortunately, immigrants who are subject to other grounds of inadmissibility must use the traditional process described above.
Importantly, the individuals who seek to use the new provisional waiver process must still prove that extreme hardship to the U.S. citizen spouse or parent would result from not waiving the unlawful presence bar. The determination of extreme hardship is made on a case-by-case basis under the totality of the circumstances and in light of supporting evidence that is submitted for consideration.
Final Rule: Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives
