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New Provisional Waiver

By: Michael Spychalski

The Department of Homeland Security has created a new process that will allow certain spouses, children, and parents of a U.S. citizen to apply for a provisional unlawful presence waiver while in the United States and before departing for an immigrant visa abroad.

To be eligible for this waiver if: 1) you are physically present in the United States; 2) you are at least 17 years of age at the time of filing; 3) you are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. Citizen; 4) you have an immigrant visa case pending with the U.S. Department of State, for which you have already paid the immigrant visa processing fee; and 5) you believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.

You are not eligible for this waiver if: 1) you do not meet one or more of the requirements listed above; 2) you have a pending I-485 residency application with USCIS; 3) you are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A; 4) you have been ordered removed, excluded, or deported from the United States; 5) you are subject to reinstatement of a prior removal order; 6) the Department of State acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or the Department of State cancelled or rescheduled the interview on or after January 3, 2013; 7) you do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion; and immigration has reason to believe that the Department of State may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.

Next month, I will go into more detail with the new provisional waiver.