Immigrants who have entered the U.S. unlawfully and who wish to apply for immigrant visas are not able to do so in the United States, and must travel abroad to apply at a U.S. embassy or consulate.

If they have accrued in excess of 180 days, or more than one year of unlawful presence in the U.S., they are then subject to an automatic three or ten year bar against re-entry, unless they submit and have approved a provisional unlawful presence waiver.

What is Changing?

As of March 4, 2013, visa applicants who are the children, spouses or parents of U.S. citizens are able to apply for a provisional unlawful presence waiver here in the U.S. before leaving the country in order to initiate the immigration visa process at a U.S. consulate or embassy.  This change will (hopefully) substantially shorten the amount of time that U.S. citizens will be forcibly separated from family members while those relatives are obtaining their immigrant visas abroad.

Under the previous waiver process, these immigrants could not apply for a waiver until after first appearing for an immigrant visa interview and a determination of inadmissibility is made. In other words, the waiver could not be submitted (and therefore considered) until the applicant was outside the United States.  Under the new provisions, applicant can file the waiver before they even leave the country to go through the immigrant visa process, allowing the wait period for a determination to be made to be spent in the United States.

What is Not Changing?

The immigrant visa process remains the same.  Even though a provisional unlawful presence waiver has been approved, the applicant is still required to leave the United States to undergo an immigrant visa interview at a U.S. consulate or embassy.  Once a waiver has been approved, it will only become effective after:

• The applicant departs the United States and appears for their immigrant visa interview and
• A Department of State consular officer determines that the applicant is not admissible to the U.S., and is eligible to receive an immigrant visa.

In other words, the new waiver is only ‘provisional’, and it is not until the applicant applies at the consulate or embassy that the waiver will be in effect.

Who is Eligible?

Immigrants must meet all of the following conditions for eligibility for the new provisional unlawful presence waiver:

• Must be at least 17 years old;
• Must be a child, spouse or parent of a U.S. citizen;
• Must have an approved Form I-130 or I-360;
• Must have a pending case with Department of State for an immigrant visa for the approved petition and have remitted the immigrant processing fee;
• Must be able to demonstrate that denial of the immigrant’s admission to the U.S. will cause the relevant U.S. citizen extreme hardship;
• Must be physically present to file the application for waiver in the United States and provide biometrics;
• Must not have been scheduled for a Department of State immigrant interview prior to January 3, 2013;
• Must meet all other requirements for the waiver, detailed in Form I-601A, instructions, and 8 CFR 212.7(e).

Who is Not Eligible?

Immigrants are not eligible to receive the provisional unlawful presence waiver if:

• They are inadmissible for other reasons besides unlawful presence;
• Department of State acted prior to January 3, 2013 to schedule their immigrant visa interview for the petition on which the waiver application is based, even if the interview was cancelled or rescheduled, or the immigrant failed to appear.
• They are in removal proceedings

However, if you have already had an interview scheduled, you will still have waiver options.  For example, those ineligible under the new provisions may file a Form 1-601 waiver from outside the United States after having been interviewed for an immigrant visa.  You may also consider restarting the petition process.  Discussing these options with an attorney will be essential to determining what is best for you and your family.

More information about the new provisional unlawful presence waiver as well as forms are available on the U.S. Citizenship and Immigration Services website.  Or click here to speak with a multi-lingual immigration attorney.