USCIS Publishes Final Waiver Rule

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By: Irina Manelis, Esq.

In the last issue of our newsletter, we described the proposed stateside waiver rule and U.S. Citizenship and Immigration Services' (USCIS) estimate that the final rule for this process would soon be published. We are pleased to report that earlier this month, USCIS officially published the final rule for the new provisional stateside waiver process, and that USCIS will begin accepting the provisional waiver applications on March 4, 2013.

Under this new process, applicants must still depart the United States to complete consular processing for their immigrant visa at the embassy. However, beginning in March, applicants will be able to apply for a provisional waiver before they depart for their embassy interview. For those who qualify for this process, the ability to apply for the waiver and receive a decision before ever departing the United States means greatly reduced risk in leaving as well as significantly reduced time spent abroad while separated from loved ones.

In order to be eligible to apply for the provisional stateside waiver, an applicant must meet the following requirements:

  • Be 17 years or older
  • Have an approved I-130 or I-360 Petition classifying the applicant as an immediate relative of a U.S. citizen
  • Have an immigrant visa case pending with the U.S. Department of State, and have paid the U.S. Department of State immigrant visa processing fee
  • Be present in the U.S. at time of filing the waiver application and present for biometrics
  • Not be in removal proceedings, unless the proceedings are administratively closed (and not recalendered) or terminated at the time of applying for the waiver
  • Be ineligible for an immigrant visa only as a result of unlawful presence in the U.S., and not any other inadmissibility ground (such as criminal, fraud or misrepresentation, previous removal, certain immigration violations, or other grounds of inadmissibility)
  • Not have already been scheduled for an immigrant visa interview at the U.S. consulate before January 3, 2013
  • Demonstrate that the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent

It is important to note that as the name "provisional waiver" suggests, the provisional waivers do not guarantee that applicants will be admitted back into the U.S. after they leave. Particularly, if it turns out the applicant is ineligible for an immigrant visa on another ground (such as criminal, fraud or misrepresentation, other immigration violations, etc.) in addition to the unlawful presence bar, or if new negative information comes to light after the provisional waiver is granted and the individual is interviewed at the consulate, the waiver will no longer be valid. We therefore strongly encourage all applicants to consult with a knowledgeable and experienced immigration attorney before filing for this or any other immigration benefit.

For applicants who are eligible to apply for the new stateside waiver process, the most challenging aspect will usually be showing that the applicant's U.S. citizen spouse or parent will suffer "extreme hardship" if the waiver is not approved. The standard to prove "extreme hardship" is hardship which is "over and above the normal economic and social disruptions" which are involved when family members are separated from each other. Thus it is critical to carefully explain and document the specific family circumstances which may lead to extreme hardship in each individual application. Typical considerations include:

  • the presence of the U.S. citizen spouse or parent's lawful permanent resident or United States citizen family ties in the United States
  • the U.S. citizen spouse or parent's family ties outside the United States
  • the conditions in the country to which the U.S. citizen spouse or parent would have to relocate to avoid separation
  • the financial impact of departure from the United States
  • significant health conditions and availability of suitable medical care in the country to which the U.S. citizen spouse or parent would relocate
  • other factors which will lead to extreme hardship

To be successful, these waiver applications need to extensively documented and persuasively argued to show how each individual applicant meets the required legal standard. Because of the complexity involved, the waiver packets should be prepared by an immigration attorney experienced with waiver applications. We strongly caution individuals to avoid hiring immigration form preparers (notarios) who do not have the legal expertise to screen potential applicants for eligibility and to present the case adequately.

Although the new provisional waiver application cannot be submitted until early March, individuals can start taking the necessary initial steps now. As noted above, before applying for the waiver, a person must already have an approved I-130 or I-360 petition, have an immigrant visa case pending with the U.S. Department of State, and have paid the U.S. Department of State immigrant visa processing fee. All of these steps can be taken immediately, including filing of the I-130 or I-360 petition with USCIS. If the I-130 or I-360 petition is already approved, the Department of State can be notified now of the applicant's intention to pursue the provisional waiver process.

If you believe that you are eligible for the new provisional stateside waiver process, we encourage you to contact us for a consultation. We will review your eligibility for the provisional waiver and analyze your unique family circumstances to understand how to best prepare and present your application. At Dyer Immigration Law Group, our immigration lawyers have extensive experience in preparing compelling and comprehensive waiver applications which have allowed numerous clients to be reunited with their families, to remain in the U.S., and to obtain permanent residency (a "green card"). Contact us today.

Call us toll free at 1.877.377.1247 to schedule an appointment at our office in Richmond or Fredericksburg. We speak English, Spanish, Portuguese, French, German and Swedish.

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