By Mitchell J. Cohen, Esquire
January 3, 2013
The Department of Homeland Security (DHS) today issued a final rule that will allow certain family members of U.S. citizens who are physically present in the United States to remain in the country while applying for the waiver they need to become permanent residents.
Certain individuals who accumulated more than 180 days of unlawful presence in the United States are barred from readmission or adjustment of status for 3 years. Certain people who accumulated more than 1 year of unlawful presence in the U.S. are barred for 10 years. There are exceptions to the 3/10 year unlawful presence rule.
The stateside provisional waiver (I-601A) process will permit certain immediate family members of U.S. citizens (spouses, parents of citizens at least 21 years of age, and minor children) to apply for a provisional waiver of unlawful presence while remaining in the U.S., thereby cutting down on the long waits-sometimes a year or more-during which these citizens may be separated from their families during the process. To obtain the provisional waiver, an applicant must prove that both family separation and relocation would cause a qualifying relative (U.S. Citizen spouse or parent) extreme hardship, and that the applicant merit a grant of the waiver in the exercise of discretion.
If the waiver is granted, the applicant would still leave the U.S. and apply for an immigrant visa abroad before returning to the United States. Approval of the provisional waiver is not an iron-clad guarantee that an applicant will be permitted to reenter the United States. Even with the approval of the provisional waiver however, the U.S. Embassy would have the final say on whether to issue the immigrant visa and let the applicant back into the United States. The U.S. Embassy maintains the authority to deny a visa application for many different reasons apart from the 3/10 year unlawful presence bar.
The final rule has been expanded to include those eligible family members whose removal proceedings are administratively closed at time of filing the provisional waiver application. However, individuals with a final order of removal, or who has been previously removed, will not be eligible for the new provisional waiver process. Individuals who have other grounds of inadmissibility (such as criminal grounds or fraud) are not eligible to use the provisional waiver process either.
Given the possibility that an individual with an approved provision waiver may still in some circumstances be denied the immigrant visa once outside the United States, it is important to consult with an experienced immigration attorney regarding one’s options.
In some cases, it may be possible to file for adjustment of status (processing the residency application in the U.S., in front of USCIS, without leaving the U.S.). In other cases where the applicant has TPS or deferred action, it may in some cases be possible to apply for and receive advance parole, and apply for adjustment of status after traveling on the advance parole document – circumventing the Embassy altogether. Traveling outside of the United States can be a one way trip for many, and it is extremely critical that you seek the advice of an immigration attorney who has thorough researched and understand the particulars of your individual case, before making any plans to depart the United States.
Mitchell J. Cohen, Esquire
Immigration and Nationality Law
Hallandale Beach Office: 1250 E Hallandale Beach Blvd, Ste. 500, Hallandale Beach, Florida 33009
Fort Myers Office: 3620 Colonial Boulevard, Suite 160, Fort Myers, Florida 33966.
This article is general in nature and should not be construed as legal advice.