On January 3, 2013 the Department of Homeland Security (DHS) published a final rule that drastically alters the immigration landscape for many undocumented aliens.
The final rule allows certain aliens unlawfully present in the United States to obtain a “provisional waiver” of their unlawful presence before departing to their home countries to obtain a visa. The effect is to significantly reduce the amount of time that these aliens spend apart from their U.S. citizen family members.
Many aliens who enter the United States unlawfully are ineligible to obtain an immigrant visa (a “green card”) without first returning to their home countries. When aliens who have been unlawfully present in the United States for more than 180 days depart to their home countries, however, they trigger a law which renders them ineligible for permanent residence for either three years or ten years, depending how long they were in the United States unlawfully.
Under the previous rules, once outside the United States those aliens could apply for a waiver of their unlawful presence with the DHS, via the Department of State (DOS). The difficulties associated with passing the waiver applications from U.S. Consulates abroad to domestic immigration authorities, combined with the time required by DHS to adjudicate the applications, frequently resulted in a waiting period ranging from several months to more than one year. All the while these aliens remained abroad, and apart from their U.S. citizen family members.
Under the final rule, aliens who have a U.S. citizen parent or spouse may apply for the unlawful presence waiver before departing the United States. According to the United States Citizenship and Immigration Service (USCIS), an agency within the DHS, an alien is eligible for the provisional unlawful presence waiver if he or she:
1. is physically present in the United States,
2. is at least 17 years of age at the time of filing,
3. is the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. citizen,
4. has an immigrant visa case pending with the DOS and the processing fee has already been paid,
5. believes that he or she is, or will be at the time of the immigrant visa interview abroad, inadmissible based on having accrued a certain period of unlawful presence in the United States, and
6. meets all other requirements as listed in the newly published regulations, the provisional waiver form, and the provisional waiver form instructions.
To apply for the provisional waiver aliens must file a Form I-601A, which will be available via USCIS’s website. USCIS will only begin accepting applications for the provisional waiver on March 4, 2013, the effective date of the final rule.
Some aliens may have already begun their immigrant visa cases prior to today (January 3, 2013), the date the rule became final. USCIS has made clear that if DOS acted to schedule an immigrant visa interview prior to January 3, 2013, even if the alien failed to appear or DOS cancelled or rescheduled the interview on or after January 3, 2013, the alien is ineligible to apply for the provisional unlawful presence waiver.
What is the impact of this new finalized rule? If an alien’s application for the provisional unlawful presence waive is approved, the alien can travel to his or her home country to obtain his or her immigrant visa and return lawfully in a matter of days. The final rule effectively eliminates the uncertainty and risks involved in the waiver process and opens the door for the lawful immigration of many aliens into the United States.
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