New regulation officially entitled “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives" has finally been published and will take effect on March 5th, 2013. President Obama’s promise of immigration reform is finally beginning to take shape and the preservation of family unity seems to be a major point of emphasis in the newest legislation. The painful separation of families via the consular visa process will be significantly reduced as a result of the new stateside waiver processing.

This legislation applies specifically to thousands of immigrants currently unable to legally adjust their status within the United States, as a result of accruing unlawful presence, by way of illegal entry or a visa overstay of 180 or more days. Previously, these individuals had to seek an official pardon known as an “inadmissibility waiver" from the American consulate in their native country, often an uncertain process for an immigrant on shaky legal footing, leaving their family in the US posed a significant risk of being unable to return, resulting from an automatic ten year ban for those lacking a legal status.

During the waiver application process an individual must prove that his/her family would suffer extreme hardship as a result of deportation. If the waiver is approved, an individual still must return to their native consulate, to file for a visa, but the risks of being stranded without legal re-entry are significantly minimized with the approval of a waiver beforehand. Even in successful cases where individuals were granted legal re-entry, many still found themselves stranded in a state of limbo for several months, while consulates finalized their visa applications. Luckily, under the new regulation, waivers of inadmissibility can now be filed stateside, alleviating the stress placed on families during the process. The new legislation aims to standardize and speed up waiver processing, ending the wide variety of consular interpretations of the term “extreme hardship." US officials now estimate that waiting times for a visa petition could be reduced to “a matter of weeks."

Still the difficult and nebulous task of demonstrating extreme hardship incurred by relatives remains central to the process. Additionally, for an individual to qualify for the new stateside waiver rule he/she must:

  • Be present in the United States at the time of filing the application for a provisional unlawful presence waiver
  • Be over the age of 17
  • Must not be inadmissible on the grounds of posing a criminal/national security threat
  • Is the spouse, parent or minor child of a US citizen
  • Is the beneficiary of an approved immediate relative petition
  • Has a case pending with the Department of State based on the approved immediate relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;
  • Will depart from the United States to obtain the immediate relative immigrant visa

At this point, it is unclear how these waivers will be handled by USCIS; it is unlikely that an unsuccessful waiver application will trigger immediate deportation, unless the individual has outstanding offenses in a criminal record or poses a threat to national security. The new stateside waiver law offers individuals more time stateside to ease the burden of travel and an opportunity to gain legal status, if their removal will indeed cause extreme hardship for their immediate relatives. So far the new waiver rule only applies to immediate family members, but could be potentially expanded to include other relatives in the near future.

The application fee for the waiver is $585; individuals may file more than one application through different relative beneficiaries, if their first petition is rejected. Although USCIS will not begin processing applications until March, individuals should take this time to assemble proper documentation and assure that they appear as a beneficiary on an approved immediate relative petition, if they have not yet done so. If you need assistance or have questions about this process, please consult the experienced immigration attorneys at Visawolf.