uscis proposes provisional waivers for unlawful presence

On January 9, 2012, the U.S. Citizenship and Immigration Services (USCIS) announced its intention to publish regulations which allow immediate relatives of U.S. citizens (spouses, parents, and unmarried children under the age of 21) to request provisional waivers of inadmissibility prior to departing the United States. Under the current system, individuals subject to the three and ten year bars due to unlawful presence must depart the United States for consular processing of their immigrant visa applications. Due to delays, waiver processing takes many months if not years, resulting in a prolonged separation which can cause extreme financial and emotional hardship for family members present in the United States.

Under the proposed regulation, USCIS would allow qualifying immediate relatives to apply for a provisional waiver of their inadmissibility for unlawful presence while they are still in the United States and before they leave to attend their immigrant visa interview abroad. An approved waiver would then be transmitted to a consular office abroad, allowing an otherwise eligible immediate relative to be issued an immigrant visa without undue delay.

An applicant would only be eligible for a provisional waiver of inadmissibility if he had no other impediments to admission into the U.S. except for being subject to the 3 and 10 year bars for unlawful presence. In addition, the applicant would have to be the beneficiary of an approved immediate relative petition (I-130); be present in the United States and over the age of 17 at the time of filing for the waiver; and would have to establish that a U.S. citizen spouse or parent would experience extreme hardship if he were denied admission into the United States as a green card holder.

It is important to understand that USCIS has not yet finalized its proposed regulation with respect to provisional waivers. Nevertheless, an individual confronted with the exceptionally challenging task of understanding the immigration laws must be prepared to consult with an experienced immigration attorney. New York City’s best immigration attorneys, the Law Offices of Wildes and Weinberg, bring with them 50 years of experience and a level of unparallel professionalism. They are the types of attorney’s you need to ensure that your case is handled with the utmost care from the very start.

If you have questions with regard to provisional waivers, please contact Managing Partner Michael Wildes at

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