Provisional Unlawful Presence Waiver Announced to Maintain Family Unity

Secretary of Homeland Security, Janet Napolitano, recently announced the posting of a final rule in the Federal Register, which will effectively limit the amount of time individuals applying for Adjustment of Status will spend away from their families during the process. USCIS has adapted the Unlawful Presence Waiver, Form I-601, by creating a rule which will allow immigrants to apply for a provisional waiver while they are still in the United States, provided they meet certain requirements. The waiver will become available on March 4, 2013.

The I-601 waiver will remain otherwise unchanged, but USCIS will publish a new waiver, Form I-601A, Application for Provisional Unlawful Presence Waiver, for individuals using the new process.

Unlawful Presence is most commonly accrued by overstaying a visa after its expiration. Persons who accrue 180 days or more of unlawful presence, after the date of April 1, 1997, are not eligible to return to the United States for 3 years. Persons who accrue one year or greater of unlawful presence, after the date of April 1, 1997, are barred from reentry into the United States for 10 years. Individuals who can prove extreme hardship to a US citizen immediate relative may be able to waive this inadmissibility bar with the unlawful presence waiver.

Other requirements necessary to qualify for the waiver include:

-Presence in the United States at the time of the filing of the waiver;

-Inadmissibility only on account of unlawful presence;

-Already approved family-based immigration petition and pending case with the Department of State.

Under the previous rule, immediate relatives of US citizens applying for Adjustment of Status, who are not eligible to adjust in the US, must first leave the country to obtain an immigrant visa abroad. Only after the applicant had appeared for an interview for the immigrant visa abroad, and inadmissibility determined, could the applicant begin the waiver process. Often times, this process proved to be both lengthy and very risky.

The new rule is designed primarily to keep families together, decreasing the amount of time that immediate relatives, applying for adjustment of status, will have to spend outside the US. Applicants who meet requirements will now be able to file a provisional waiver, Form I-601A, in the United States, before they depart for their interview abroad. The new process will reduce risk of long term separation, while severely reducing the amount of time needed to be spent abroad.

For any questions regarding the unlawful presence waiver, changes made on the new Form 1-601A, or to determine if you or your loved ones qualify for this process, call Houston immigration attorney Sebastian J. Simon today. His team of qualified professionals is trusted in Houston for both terrific customer service and world class legal expertise.