News

Applications for Provisional Stateside Waivers Will be Accepted Beginning March 4, 2013

Current rule

As the law currently stands, certain immigrants who enter the country illegally or overstay their visas are ineligible to apply for permanent residence (commonly referred to as a “green card”) from within the United States (known as adjustment of status). Instead, they must leave the United States at the risk of facing up to an automatic 10-year bar on re-entering before being eligible to apply for permanent residency from abroad (known as consular processing). In some instances, the bar can be bypassed by filing a formal waiver of unlawful presence while abroad. During this time, the immigrant is separated from his or her family for prolonged periods of time – often resulting in emotional and financial distress.

New rule

The United States government has taken steps to address this issue. Effective March 4, 2013, certain immediate relatives of American citizens who are presently in the United States illegally and require a waiver, may be able to apply for such a waiver and obtain a decision on their case prior to returning to their home country for a green card interview. This means that qualified immigrants can leave the United States with the knowledge that the waiver will likely be approved and that they will not have to face prolonged periods of separation from their families.

Eligibility and criteria

So who is eligible to apply for a provisional waiver? At present, the new rule only applies to immediate relatives of a U.S. citizen (such as spouses, parents and children). Furthermore, applicants must be in the United States, and not already have a scheduled interview at a U.S. consulate abroad. Furthermore, applicants must be able to demonstrate that denying the waiver would result in an extreme hardship to a qualifying U.S. relative. Extreme hardship may include medical conditions, prolonged family separation, financial/economic hardship, or any other difficulty or harm faced by the qualifying relative, if the waiver isn’t granted. An approved waiver would be considered provisional in that the government believes that the waiver should be granted. However, new facts or information could result in a denial later on.

Applications for provisional waivers can only be made after an immigrant petition (I-140) has been approved. There are no appeal rights of a waiver application is denied, although applicants can file a new application provided they are willing to pay the filing fee again.

Attorney consultation

Prior to investing time and money in applying for a waiver, potential applicants should consult with an immigration to evaluate the merits of their case. Maximilian Law Inc. has helped many clients obtain such waivers. Please feel free to call Cedric M. Shen, Esq. at (310) 591-8200 for a free initial consultation.