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FAMILY UNITY: Provisional Unlawful Presence Waiver

On January 2, 2013, the United States Citizenship and Immigration Service (USCIS) announced that certain immediate relatives of U.S. citizens who are present in the United States may apply and be approved for provisional unlawful presence waivers before leaving the United States to attend their immigrant visa interviews for their green card.  USCIS will begin to accept provisional unlawful presence waivers using Form I-601A on March 4, 2013.  This provisional waiver only waives unlawful presence.  It cannot be used to waive a criminal offense or any other grounds of inadmissiblity.  There are two essential requirements that must be met in order for a person to qualify for this provisional waiver.  The first requirement is that a person must be the beneficiary of an approved I-130 visa petition that classifies the beneficiary as an ‘immediate relative’.  An ‘immediate relative’ is defined by immigration law as a spouse, parent, or child (who is unmarried and under 21 years of age) of a United States citizen.  If the beneficiary is a parent, the petitioning son or daughter must be a U.S. citizen and at least 21 years old.  Also, certain widows/widowers of deceased U.S. citizens can also be immediate relatives.  The second requirement is that the beneficiary must be able to prove that s/he has a ‘qualifying relative’ who will suffer extreme hardship if the beneficiary were refused admission to the United States.  A ‘qualifying relative’ is defined under the immigration law as a U.S. citizen spouse or U.S. citizen parent.   IMPORTANT: A U.S. citizen child may not be a qualifying relative for the purpose of showing extreme hardship in this type of application except to the extent that it affects the U.S. citizen spouse or parent.  The qualifying relative and the immediate relative petitioner do not need to be the same person.  Please be aware that this is merely a brief overview of the new waiver process.  Before filing any paperwork with USCIS, you should consult with an experienced immigration attorney to determine whether you qualify for this waiver.

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