On Friday, March 30th, 2012, the United States Citizenship and Immigration Services announced a notice of proposed rulemaking to improve the process for specific immediate relatives of United States citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the country. This waiver will apply to those individuals who can demonstrate that their U.S. citizen spouse or parent will face serious hardship if the non-U.S. citizen were to leave the country. The main purpose of the proposed rule is to reduce the amount of time that U.S. citizens are separated from their immediate relatives while the non-U.S. citizen family member goes through the
immigration process overseas to obtain a
visa. Below are some common questions and answers regarding the
provisional unlawful presence waiver:
How does a person apply for the provisional unlawful presence waiver?
Unfortunately, the provisional waiver process is not in effect and will not be available at this time. It will only take effect after a final rule (this is currently an interim rule) is published in the Federal Register.
Why is the category of people who qualify for the waiver so minimal?
The purpose of this opportunity is to alleviate the serious hardship of a U.S. citizen who is forced to be without a spouse, child, or parent (immediate relative) for an extended period of time. It is expected that this process will reduce the amount of time it takes for an immediate relative of a U.S. citizen in need to obtain an immigrant visa.
What documents will be needed to file the application?
When the application becomes available, the USCIS will provide instructions on how to fill out the new Form I-601A and which types of documents you will need to submit your provisional waiver. At the very minimum, you can expect to require proof of an approved Form I-130, Petition for Alien Relative, and an immigrant visa application fee receipt from the Department of State. Should a person fail to follow these instructions set by the USCIS, the application will automatically rejected or denied.
Can the waiver be filed simultaneously with the Form I-130?
No; the Form I-130 must be approved prior to filing for the provisional waiver.
If a provisional waiver is obtained, can an immigrant's status be adjusted without leaving the United States?
No; a person who wishes to change their status must attend an immigrant visa interview with a DOS consular officer in their home country.
Is a non-U.S. citizen eligible for employment after obtaining the provisional unlawful presence waiver?
No; a person who is approved for this waiver is not eligible for employment. The waiver will not provide for these benefits or provide lawful status, stop the accrual of lawful presence, protect from removal, guarantee visa issuance or admission into the United States. A separate approval must be made in order for a person to obtain an employment-based visa.
How long will a provisional unlawful presence waiver be valid?
Once a person has been approved, according to the proposed rule, the person's wavier would remain valid so long as the underlying immigrant visa, such as the Form I-130, has not been revoked. If the immigrant visa is revoked, the waiver will no longer be valid.
If you have any questions regarding the proposed interim rule, don't hesitate to speak with a Dallas immigration attorney from the Mathur Law Offices. Our legal team has provided residents in the area and their non-U.S. citizen family members with the experienced representation they deserve for over 15 years. To obtain your initial consultation with the firm,
contact Dallas immigration lawyer Sanjay S. Mathur right away.