Department of Homeland Security (DHS) recently announced the much anticipated provisional unlawful presence waiver rule, which will reduce the time U.S. citizens are separated from their qualified immediate relatives, who are in the process of getting their green cards. The final rule establishes a process that allows qualified relatives of U.S. citizens to apply for a provisional unlawful presence waiver before they depart the U.S. to attend immigrant visa interviews to obtain their green cards in their countries of origin. This was not possible under the previous rule, where the applicant must file for an unlawful presence waiver at the U.S. Embassy abroad and only after departing the U.S.
The new waiver is only applicable for illegal immigrants who cannot get their green cards in the U.S. solely for the reason that they are in the U.S. unlawfully - that is they stayed in the U.S. beyond their authorized stay or they are present in the U.S. without having been admitted or paroled. The new waiver does not cure any other defects including criminal issues or other immigration violations. Therefore, in order to determine whether an illegal immigrant is eligible for a provisional waiver, one should know the definition of “unlawful presence”.
If a person enters the U.S. without inspection (EWI), he is unlawfully present in the U.S. Also, If an alien remains in the U.S. for more than 180 days beyond the authorized period of stay noted in I-94 card, s/he is unlawfully present in the U.S. and cannot come back to U.S. for 3 years after departing the U.S. If the alien remains one year or more beyond the authorized stay, s/he will be barred from the U.S. for 10 years. This is called 3-10 year bar.
An applicant needs to satisfy the following to apply for a provisional unlawful presence waiver;
1- must be physically present in the U.S. illegally;
2- must be at least 17 years of age at the time of filing;
3- must be the Beneficiary of an approved immigrant visa petition filed by U.S. citizen spouse, parent, or certain children;
4- must be inadmissible only due to period of unlawful presence in the U.S.;
5- must show that denying the case would be an extreme hardship to applicant’s qualifying relatives (only U.S. spouses and parents at this time). Other relatives are not included, but may be added in the future. It is important to note that the applicant must prove extreme hardship to the qualifying relative and the hardship on the applicant does not count. Examples of extreme hardship include: family separation, economic hardship, medical issues, country conditions abroad, etc...
The rule goes into effect on March 4, 2013. Persons under removal procedures are not eligible. Last but not the least, a provisional waiver is not a legal status, and even an approved waiver does not provide work authorization, a social security number or a driver’s license. Moreover, since it is provisional, if the facts change or new information comes into light about the applicant, there is no guarantee that the applicant will successfully complete the green card interview at the U.S. Embassy abroad.