Update on Provisional Unlawful Presence Waivers

USCIS has recently published new regulations allowing certain immediate relatives of U.S. citizens who are physically present in the U.S. to file their unlawful presence waiver petitions prior to departing from the United States.  Currently certain spouses, children and parents of U.S. Citizens cannot apply for lawful permanent residency while in the United States and must travel abroad to consularily process their cases.  At times, they would spend up to a year separated from their family awaiting decisions on their waiver applications.   New regulations modifying the unlawful presence waivers processing will help alleviate some of those issues.

For an applicant to take advantage of the new regulations he or she must meet the following requirements:

i.                     have approved Form I-130 or I-360 as an immediate relative of U.S. citizen (spouses, children, and parents of U.S. Citizens qualify)

ii.                   be physically present in the U.S. at the time of filing

iii.                  show extreme hardship to citizen spouse or parent

iv.                 be 17 years or older

The rule becomes effective on March 4, 2013.  The initial filing fee associated with this type of application is $585.00 plus $80.00 in biometrics fee.

Common questions pertaining to the new regulations:

Q.        My waiver application is already pending with DOS. Can I take advantage of the new procedures?

A.         Provided that the immigration visa interview was scheduled before January 3, 2013, the intending immigrant is ineligible to apply for a provision unlawful presence waiver.   The actual date and time of the interview is not a determinative factor.  

Q.        I am currently in removal proceedings, can I file my application for an unlawful presence waiver in the U.S.?

A.        Only intending immigrants whose removal cases are terminated, dismissed, or administratively closed are eligible to apply for a provisional unlawful presence waiver.  

            Q.        I have previously filed form I-601A with USCIS, can I re-apply?

A.        Yes, if an individual’s provisional unlawful presence waiver petition is denied or withdrawn,  he or she may file a new application.

Q.        My case has been deferred Under DACA, but I have a final removal order, can I participate in the process?

            A.         Intending immigrants with final removal orders on their record are not 

                        eligible.

            Q.         Once my application is filed, will I be scheduled for an interview?

            A.         DHS indicated that majority of applicants will not be scheduled for

                        interviews.