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The Provisional Waiver is Here!

Published on April 2013 | By Shahzad Ahmed - Orlando Immigration Attorney with NeJame Law

[Background: Traditionally, if a foreign national has been unlawfully present in the U.S. for 180 days, then his departure from the U.S. triggers a 3 year bar to return. If he has been unlawfully present for 10 years, then his departure from the U.S. triggers a 10 year bar. This bar can be waived by the Immigration Service, once the applicant has departed the U.S. and applied for an Immigrant Visa at the Embassy, if he can demonstrate that there would be extreme hardship to his qualifying relative.]

The New Policy: On March 4, 2013, the Department of Homeland Security implemented the final rules for the Provisional Waiver process. Under the new policy, the spouses and sons and daughters of U.S. citizens (not of permanent residents) would be permitted to apply for the waiver of the 3/10 year bar and receive a decision prior to leaving the U.S. Although the immigrant would still be required to depart the U.S. for their immigrant visa, by granting an early provisional waiver to those who are eligible, the new rule would take away much of the uncertainty of returning to the U.S. and also reduce the lengthy time of separation among the family. It is important to note that this procedure would not lax the standard of hardship requisite for the waiver.

In order to be eligible for the provisional waiver process, the applicant must:

  1. Be at least 17 years of age.
  2. Be an immediate relative of a U.S. citizen (not a preference category immigrant who has a visa available).
  3. Have an approved Form I-130, Petition for Alien Relative.
  4. Have have paid the fee bill for his pending immigrant visa case with the Department of State.
  5. Demonstrate that refusal of your admission to the United States will cause extreme hardship to your U.S. citizen spouse or parent.
  6. Be physically present in the United States to file your application for a provisional unlawful presence waiver and provide biometrics.
  7. Not have been scheduled for an immigrant visa interview by DOS before January 3, 2013.

The above are most of the requirements from the USCIS publication.

Important note from NeJame Law: Anyone considering departing the U.S. should first consult with an experienced immigration attorney.

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