Unlawful Presence Waivers

USCIS published its final version of a much anticipated new rule that will allow certain immediate family members of U.S. citizens who are physically present in the United States to apply for a waiver to waive their unlawful presence PRIOR to their departure to their home country for a visa interview. This will cut down the length of time that an applicant for legal permanent resident status is outside of the United States.

Under the current process, people applying for legal permanent resident status who have been living in the U.S. for more than 6 months without legal status must apply for a waiver to waive their “unlawful presensce”. At the moment, an application for a waiver can only be submitted after a person has returned to their home country for their visa interview, and completed their interview. At this point, reviewing an application for a waiver can take several months, and force U.S. citizens to be seperated from their family members for long periods of time. Under this new process, an applicant can apply for a waiver PRIOR to departing the U.S. for their visa interview, and if there are no other grounds of inadmissibility, the visa can be approved immediately.

Please keep in mind that this new rule only allows you to apply for a waiver of unlawful presence, and not for any other reasons of inadmissibility. For the other grounds of inadmissibility, you will still have to proceed under the current rule and submit a waiver application AFTER your visa interview. The new rule takes effect March 4, 2013, and is anticipated to remove a roadblock for many immediate family members who are eligible to adjust status.

Here’s a summary of the new rule:

SUMMARY: On April 2, 2012, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule to amend its regulations to allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications. This final rule implements the provisional unlawful presence waiver process. It also finalizes clarifying amendments to other provisions within our regulations. The Department of Homeland Security (DHS) anticipates that these changes will significantly reduce the length of time U.S. citizens are separated from their immediate relatives who engage in consular processing abroad. DHS also believes that this new process will reduce the degree of interchange between the U.S. Department of State (DOS) and USCIS and create greater efficiencies for both the U.S. Government and most provisional unlawful presence waiver applicants.

DHS reminds the public that the filing or approval of a provisional unlawful presence waiver application will not: Confer any legal status, protect against the accrual of additional periods of unlawful presence, authorize an alien to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or protect an alien from being placed in removal proceedings or removed from the United States in accordance with current DHS policies governing initiation of removal proceedings and the use of prosecutorial discretion.

DATES: This final rule is effective March 4, 2013.

For the full text published in today’s Federal Register, visit here: http://www.gpo.gov/fdsys/pkg/FR-2013-01-03/pdf/2012-31268.pdf