Homeland Security
Release Date: January 2, 2012
Today the Secretary of Homeland Security Jane Napolitano announced the
posting of a final rule in the Federal Register that reduces the time U.S.
citizens are separated from their immediate relatives (spouse, children and
parents), who are in the process of obtaining visas to become lawful permanent
residents of the United States under certain circumstances. The final rule
establishes a process that allows certain individuals to apply for a provisional
unlawful presence waiver before they depart the United States to attend
immigrant visa interviews in their countries of origin. The process will be
effective on March 4, 2012 and more information about the filing process will be
made available in the coming weeks.
U.S. Citizenship and Immigration Services (USCIS) received more than 4,000
comments in response to the April 2, 2012 proposed rule and considered all of
them in preparing the final rule.
"The law is designed to avoid extreme hardship to U.S. citizens, which is
precisely what this rule achieves, "USCIS Director Mayorkas said. "The change
will have a significant impact on American families by greatly reducing the time
family members are separated from those they rely upon."
Under the current law, immediate relatives of U.S. citizens who are not
eligible to adjust status in the United States to become lawful permanent
residents must leave the U.S. and obtain an immigrant visa abroad. Individuals
who have accrued more than six months of unlawful presence while in the United
States must obtain a waiver to overcome the unlawful presence inadmissibility
bar before they can return to the United States after departing to obtain an
immigrant visa. Under the existing waiver process, which remains available to
those who do not qualify for the new process, immediate relatives cannot file a
waiver application until after they have appeared for an immigrant visa
interview abroad and the Department of States has determined that they are
inadmissible.
In order to obtain a provisional unlawful presence waiver, the applicant must
be an immediate relative of a U.S. citizen, inadmissible only on account of
unlawful presence, and demonstrate the denial of the waiver would result in
extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish
a new form, Form I-601A, Application fro a Provisional Unlawful Presence Waiver,
for individuals to use when applying for a provisional unlawful presence waiver
under the new process.
Under the new provisional waiver process, 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. Individuals who file the Form I-601A must notify the
Department of State's National Visa Center that they are or will be seeking a
provisional waiver from USCIS. The new process will reduce the amount of time
U.S. citizen are separated from their qualifying immediate relatives.
For more information about the Release, please call our office at
(212)564-1589 to speak with an attorney or visit the
www.uscis.gov.
