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Certain spouses, children, and parents of U.S. citizens (immediate relatives) who are in the United States are not eligible to apply for lawful permanent resident (LPR) status while in the United States. Instead, these relatives must travel abroad to obtain an immigrant visa from the Department of State (DOS) to return to the United Sates to request admission as an LPR and, in many cases, also must request from the Department of Homeland Security (DHS) a waiver of inadmissibility as a result of their unlawful presence in the United States. Currently these relatives cannot apply for the waiver until after their immigrant visa interviews abroad.
As a result, these immediately relatives must remain outside of the United States, separated from their U.S. citizen spouses, parents, or children, while USCIS adjudicates their waiver applications. In some cases, waive application processing can take well over one year, prolonging the separation of these immediate relatives from their U.S. citizen spouses, parents, and children. In addition, the action required for these immediate relatives to obtain the LPR status in the United States-departure from the United States to apply for an immigrant visa at a DOS consular abroad-is the very action that triggers the unlawful presence inadmissibility grounds under the Immigration and Nationality Act (INA) section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i). As a result of the often lengthy processing times and uncertainty about whether they qualify for a waiver of the unlawful presence inadmissibility grounds, many immediate relatives who may qualify for an immigrant visa are reluctant to proceed abroad to seek an immigrant visa.
On April 2, 2012, the United States Immigration Services (USCIS) published a Notice of Proposed Rule-making (NPRM) regarding the provisional unlawful presence waiver process. DHS reviewed and considered all of the public comments. As a result, DHS adopted most of the public comments and produced a final rule. The completion of the provisional unlawful presence waiver process was then announced to the public on January 2, 2012 by the Secretary of Homeland Security, Janet Napolitano. This final rule is expected to result in a reduction of the time that U.S. citizens are separated from their immediate relatives, thus reducing the financial and emotional hardship for these families. In addition, the Federal Government should achieve increased efficiencies in processing immigrant visas for individuals subject to the unlawful presence inadmissibility bars under the INA section 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B).
USCIS will start accepting unlawful presence waiver application (I-601A) on March 4, 2013. It is important to keep in mind that the provisional unlawful presence waiver process does not confer any legal status, protect against the accrual of additional periods of unlawful presence, authorize an alien to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or protect an alien from being placed in removal proceedings or removed from the United States in accordance with current DHS policies governing initiation of removal proceedings and the use of prosecutorial discretion.
For questions about the provisional unlawful presence waiver process please visit the Law Offices of Norka M. Schell, LLC's website www.lawschell.com or call our office at (212)564-1589 to speak with an attorney or visit the USCIS website at www.uscis.gov>
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