DHS has published a Notice of Proposed Rulemaking outlining its plan to reduce the time U.S. citizens are separated from certain immediate relatives while those family members are in the process of obtaining an immigrant visa to become lawful permanent residents of the United States. Currently, immediate relatives of U.S. citizens who have accrued more than 180 days of unlawful presence in the United States and have to leave the country as part of the legal immigration process, are barred from returning to their families in the United States for as long as three to ten years. They can receive a waiver to allow them to return to the United States by demonstrating that their U.S. citizen family member would face extreme hardship as a result of the separation.
Under the new proposed process, spouses and parents of U.S. citizens who are eligible for a visa to immigrate legally to the United States, but who need a waiver of inadmissibility for unlawful presence would apply for a provisional waiver in the United States before leaving the United States to have their immigrant visa application processed at a U.S. embassy or consulate abroad. This provisional or “stateside” waiver would take effect when the individual departs from the United States, triggering the covered ground of inadmissibility, and is determined by the consular officer to be otherwise admissible to the United States at his or her immigrant visa interview. This new streamlined process is limited to spouses and parents of U.S. citizens who are inadmissible based solely on having accrued a period of unlawful presence and who can demonstrate extreme hardship to their U.S. citizen relative. Please note that children under the age of 18 do not accrue unlawful presence and as a result, are not required to obtain a waiver.
The provisional unlawful presence waiver is not yet in effect and will not be available until the effective date that will be specified in the final rule to be published by USCIS in the Federal Register later this year. Any applications sent requesting a provisional waiver at this time will be rejected.