At the moment, immediate relatives (spouses, children, and parents) of U.S. citizens who are not eligible to adjust status in the United States must leave the United States and obtain their visa in their country of origin. Moreover, those who have spent more than six months in the U.S. without authorization, that is, who have accrued unlawful presence, are barred from re-entering the U.S. once they have departed. To overcome the unlawful presence bar, individuals must apply for a waiver of unlawful presence. It is not until this waiver is approved that the individual may return to the United States and be reunited with his or her U.S. citizen family member(s). In order to have the waiver approved, the applicant must demonstrate that their U.S. citizen spouse or parent would suffer extreme hardship if the waiver is denied. Furthermore, the individual cannot apply for this waiver until he or she is deemed inadmissible by a consular officer at the visa interview abroad. The current process results in familial separation that ranges from a few weeks to over a year in some cases.
Under the process introduced by the new rule, immediate relatives of U.S. citizens who are barred from returning to the U.S. only because of unlawful presence can apply for a Provisional Unlawful Presence Waiver before they depart the United States. The applicant must still demonstrate that denial of the waiver will result in extreme hardship to their U.S. citizen spouse or parent. In addition, the applicant will need to file Form I-601A, Application for a Provisional Unlawful Presence Waiver, pay the filing fee of $585.00, and notify the Department of State’s National Visa Center that they are seeking the provisional waiver from USCIS.
It is important to note that this new process is not effective until March 4, 2013. Therefore, do not file for a provisional unlawful presence waiver until that date. If you do, USCIS will deny your application and return it to you. Moreover, beware of individuals who claim they can file these applications for you immediately, as it is most likely a scam.
Please check back regularly for more information on the new Provisional Unlawful Presence Waivers.