Provisional Unlawful Presence Waiver – Final Rule Published

22:25 01 October in News Updates

The Department of Homeland Security posted in the Federal Register a final rule that will decrease the period of time U.S. citizens will be separated from their immediate relatives (spouse, children and parents) when such family members proceed with the process to apply for a visa to become U.S. permanent residents. This rule applies to certain individuals who must obtain a waiver of unlawful presence before completing the permanent resident process. The rule will permit certain individuals to apply for a provisional unlawful presence waiver prior to departing the United States for their immigrant visa (“green card”) interview at a U.S. consular post abroad in their home country.

Individuals who have been unlawfully present (remained in the U.S. beyond their period of authorized stay) in the United States for six months or longer are not eligible to apply for U.S. permanent resident status in the U.S. and must depart the U.S. and obtain a waiver to overcome the unlawful presence inadmissibility bar before they may return to the U.S. following their application for an immigrant visa abroad. This process has required that the immediate relatives apply for their immigrant visa abroad and have the Department of State determine their inadmissibility before they may then file the waiver application. Such a process has resulted in immediate relatives being separated from their U.S. citizen family members for months or years.

The new process, which will go into effect on March 4, 2013, permits immediate relatives to submit an application for provisional unlawful presence waiver prior to departing the U.S. for the immigrant visa interview abroad. The applicant can only be inadmissible based on unlawful presence and must show that the denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent.

This new process has been designed to limit the period of time that U.S. citizen sponsors will be separated from their immediate relatives.

Information about this new process and the new form, I-601A, Application for a Provisional Unlawful Presence waiver, may be found at and Please contact our office if you have any questions or would like assistance with the new process.

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