On January 3, 2013, United States Citizenship and Immigration Services (USCIS) published a final rule in the Federal Register allowing certain immediate relatives of United States citizens who are physically present in the United States to apply for and obtain provisional waivers of inadmissibility for the immigration violation of unlawful presence.  The Department of Homeland Security anticipates the changes will reduce the length of time United States citizens are separated from their immediate relatives who must consular process outside of the United States.  The new rule will rule will be effective March 4, 2013.

Under current law, United States citizens may sponsor foreign spouses and parents for lawful permanent resident status (green cards) in the category of "immediate relative."  If the immediate relative resides in the United States but entered the United States was not admitted or inspected by an immigration officer, the immediate relative must travel to a United States consulate in a foreign country to apply for their green card.  Many will trigger an unlawful presence bar of inadmissibility when leaving the United States, which prohibits reentry to the United States for a period of three or ten years.  Previously, applicants who trigger the unlawful presence bar would need to submit an application for waiver of the unlawful presence bar at the consulate outside of the United States.  Because the waiver of inadmissibility application could take between months to years to adjudicate, United States citizens were often separated from their immediate family members for long durations.

The new rule sets out to reduce the duration of time families are separated by allowing immediate relatives to apply for waiver of the unlawful presence bar before leaving the United States for consular processing.  The result of the rule is that immediate relative applicants for green cards at United States consulates abroad would have to remain outside the United States and away from their families in the United States for a shorter period of time.

The new rule will directly impact many "illegal aliens" who are married to United States citizens, but have been unwilling to apply for permanent resident status because of fears of being trapped outside the United States and separated from their families. 

The new rule has many limitations.  The new rule covers only "immediate relatives." Foreign nationals in other family based categories are not eligible and must seek waivers outside the United States.  The new rule covers only waivers for "unlawful presence" and no other bars of inadmissibility.  An applicant for waiver of inadmissibility for unlawful presence under the new rule must successfully show extreme hardship would result to a United States citizen spouse or parent from the separation.  The new rule does not include lawful permanent resident spouses or parents.  

Persons interested in the provisional waiver program may contact The Chander Law Firm for more information.

Related Links

DHS, Press Release: Secretary Napolitano Announces Final Rule to Support Family Unity During Waiver Process (Jan. 2, 2013).

Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536 (Jan 3. 2013). pdf

Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536 (Jan 3. 2013). html