USCIS announces final rule to allow for provisional waiver process supporting family unity

On January 2, 2013, USCIS announced the long awaited posting of the final rules for the provisional waiver process, a sensible solution to a component of immigration law that caused families to be separated during the petition process for immediate relatives (spouses, parents and children) who had entered the United States without inspection. Because of the beneficiary’s status and method of entry into the United States, the former process would require that they leave the country and apply for a waiver of their inadmissibility caused by such status. That could result in immediate relatives being separated from their families for extremely long periods of time, even as much as ten years. Under the process proposed early in 2012 and outlined with today’s announcement, the immediate relative will be able to apply for that waiver of inadmissibility while in the United States. While they still must depart the United States to obtain their visa through a consular process, if approved for the provisional waiver they would depart the country with the comfort and knowledge that they will be granted reentry promptly.

To be approved for a provisional waiver, the applicant must show that their immediate relative will suffer extreme hardship if they are not allowed to reenter the United States.

In other words, an individual who was previously unable to petition for their spouse, parent or child out of fear that their loved one would be forced to be out of the country for an extended period of time may now apply for a waiver of the bar to reentering the United States as part of the petition process. Once the beneficiary has an approved provisional waiver, they will be able to depart the United States knowing that the United States government has waived their inadmissibilty based on their method of entry into the United States.

It is important to note that this process not only makes sense for the important purpose of maintaining family unity, it will also likely be much less expensive for USCIS and the State Department to be able to have the waiver process handled from within the United States rather than at consular outposts around the world. Further, the final rules state that any increase in processing costs will be offset by fees charged to applicants.

Applicants will be required to file a new form (I-601A) to seek the provisional waiver. The process will be effective March 4, 2013.

For more information about the provisional waiver process, call the Hernan Law Firm at (678) 275-4000 for a free, no obligation consultation, or visit www.hernanfirm.com/immigration.

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