Florida Immigration Attorneys

New Provisional Waiver Process for Many that have Entered the US Without a Visa

Beginning March 4, 2013 a new waiver process starts principally for foreign nationals in the US that have entered the US without a visa and who are related to a US citizen by birth, marriage or parentage. Before this process those who have accumulated unlawful presence in the US and were not permitted to adjust their status to permanent resident in the US had to leave the US for a waiver after an interview at the US consulate. The new process permits those qualified to apply for a provisional waiver in the US before leaving the US. The new rule should reduce the time U.S. citizens are separated from their immediate relatives. Again immediate relatives are the spouse, children under 21 years of age and parents of US citizens.

This change is for those in the process of seeking visas to become 'green card' holders in the United States. Qualified persons will now apply for a provisional unlawful presence waiver before leaving the US to obtain their permanent resident status US consulate. The change will affect those who had entered the US without a visa (EWI) and are not allowed to obtain permanent resident status 'green card' in the US. Currently, many persons who enter the US without a visa are required to depart the US to obtain resident status at a US consulate outside the US. Once the foreign national departs the US they may have a bar to return if they have been in the US for more than six months without authorization. Either a 3 or 10-year bar on returning to the US may be triggered. Before being permitted to return they must either comply with the bar or obtain a waiver of the bar before being permitted to return to the US.

The new waiver process will allow the filing of a waiver application before going for an immigrant visa interview at the consulate and before being found inadmissible by the US consulate. A provisional unlawful presence waiver for immediate relatives of a U.S. citizen may be submitted and adjudicated provisionally before leaving the US. The new rule is available only immediate relatives who are inadmissible only for unlawful presence.

The old process remains available for those that are not immediate relatives as well as for immediate relatives. Both processes require the applicant to demonstrate extreme hardship to the U.S. citizen spouse or parent.

A new form is being developed for the new provisional waiver process.

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