Proposed Provisional Wavier of Unlawful Presence

By: Aurora Vega-Buzon, Esq.

USCIS has published a very important proposed change in processing petitions for certain alien relatives called "Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives". How does this proposed change affect you?

Current Rule. A United States citizen who wants to sponsor his alien spouse, parent or minor child (under 21 years old and unmarried) must first file a petition for an alien relative (I-130). Upon approval, such alien spouse, parent or minor child can file for "adjustment of status" to that of a green card holder, if present in the Unites States; or if abroad, receive an immigrant visa from a United States Embassy. However, there are certain grounds why an alien spouse, parent or child - who is already in the United States - cannot be approved for adjustment of status and be granted a green card, for example: 1) alien entered without inspection or admission (alien illegally crossed over and did not go through border inspection/admission); or or 2) alien entered as a fiancé/e or child of a fiance/e and did not marry the United States citizen who filed the fiancé/e petition; or 3) alien entered as a crewman. Thus, the alien spouse, parent or child must depart the United States to get an immigrant visa at the United States Embassy in his home country, and return to the United States to be admitted as an immigrant. The problem is, once the alien departs the United States, he will be barred from getting an immigrant visa for either 3 or 10 years, if he has been unlawfully present in the United States for more than 6 months, or more than 1 year. Thus, the alien's required departure for the visa interview, is the very action that triggers the 3/10 year bars. The alien needs to file an Application for Waiver of Inadmissibility (I-601) with the Embassy, and must show "extreme hardship" to a qualifying relative to waive the bar. Waiver processing takes almost a year or longer; and if denied, the alien spouse, parent or child is stuck outside the United States for 3 or 10 years, before re-applying for an immigrant visa.

Proposed Rule. USCIS proposes a rule that will allow immediate relatives of United States citizens and certain other aliens, while in the United States – to file for unlawful presence waivers with the USCIS; and if approved, the alien will be granted a "provisional unlawful presence waiver", which will become effective upon the alien's departure from the United States and a determination by a United States Embassy that the alien is not subject to any other ground of inadmissibility other than unlawful presence and because of the provisional waiver, will be given an immigrant visa.

Who Will Benefit. The proposed rule is limited to the "Immediate Relatives" of United States citizens (who must be at least 21 years old), namely: 1) Spouses; 2) Parents; and 3) Unmarried children under 21 years of age. Also included are specific classes of individuals: 4) certain Surviving Spouses and Children of United States citizens; 5) Self petitioners; 6) Aliens entitled to conditional permanent resident status based on marriage to a United States citizen which is less than two years.

Conditions for Eligibility.To be eligible for the provisional waiver of inadmissibility, an applicant alien must show: i) he is one of the above classes of aliens; 2) he is the beneficiary of an approved immediate relative petition; 3) he is age 17 or older; 4) he is currently present in the United States but cannot become a permanent resident unless he departs and get an immigrant visa abroad; 5) that upon departure, he will be subject to the 3 year or 10 year unlawful presence bars and will become inadmissible only on that sole ground; 6) he has paid the immigrant visa processing fee with the State Department and has not yet been scheduled for a visa interview at the Embassy; and 7) his United States citizen spouse or parent will suffer "extreme hardship" if the waiver application is not granted.

Bear in mind that the provisional waiver rule is just a proposal at this point. Once the rule is final, we still have to wait for USCIS to issue implementing rules and regulations and announce an effective date for accepting applications.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277;
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