Family Unity and the Immigrants


If you are the spouse, child or Parent of a United States Citizen, a new provisional waiver may be applicable to you or your family.  On January 2, 2013, the Secretary of Homeland Security Janet Napolitano announced the posting of a final rule that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who want to become lawful permanent residents (green card holders) of the United States.  This rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013. If you believe this waiver may apply to you, you should call us immediately to obtain more information about the filing process.  Do not wait, there is much that needs to be done to prove the “extreme hardship” requirement for this waiver.

Prior to this provisional waiver being available, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s NationalVisaCenter that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.

You may be eligible for a provisional unlawful presence 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 (DOS), for which you have already paid the immigrant visa processing fee;
  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; and
  6. You meet all other requirements of the provisional unlawful presence waiver as listed in the regulations, the Form I-601A and its instructions.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about the immigrant law.  Furthermore, the article is not intended to explain or identify all potential issues that may arise in an immigration case.  Each case is fact-specific and therefore similar immigration cases and applications may have different outcomes.

I represent individuals in immigration cases.  If you have any questions or concerns about an application for this waiver or an immigration case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Please look for my next article in the March issue.

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