The Provisional Unlawful Presence Waiver has officially been approved and we expect it to be in motion no later than March 4, 2013. The public comment period on the regulation ended on June 1, 2012 and the final rule was published in the Federal Register on January 3, 2013. The Provisional Waiver Rule was announced by the Department of Homeland Security.
The waiver serves to substantially reduce the period of time that immigrants, who either entered without inspection or overstayed their visas, will have to spend apart from their families after applying for immigrant visas and a waiver of inadmissibility to the United States for unlawful presence. Prior to the most recent rule, the majority of immigrants who had been deemed ineligible for admissibility into the United States were required to return to their country of origin where they could possibly remain for months or even years while waiting for the approval of a waiver of inadmissibility, causing severe distress to family members left in the United States.
Now, via the Provisional Unlawful Presence Waiver, immigrants who are inadmissible due to unlawful presence in the United States may remain in the United States while their request for a waiver of inadmissibility is being processed. According to USCIS regulation, “the applicant must be an immediate relative of a U.S. inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.” Immigrants will not be required to return to their country of origin until, either their waiver has been approved, in which case they will need to return in order to attend their consular interview and obtain their visa, or that waiver is denied. Presently, immigrants deemed inadmissible for any reasons other than unlawful presence [fraud, criminal activity, etc…] are ineligible for the Provisional Unlawful Presence Waiver.
Further details on the process change can be found on the regulations website.
Ruby L. Powers
Immigration Attorney with a focus on I-601 and I-601A waivers
Law Office of Ruby L. Powers
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Ley de Inmigración: Regla de Perdón Provisional efectiva a partir del 4 de Marzo del 2003
El Perdón Provisional por presencia ilegal ha sido oficialmente aprobado y se espera tome efecto a más tardar el 4 de Marzo del 2013. El periodo de comentarios públicos sobre esta norma terminó el 1ro de Junio del 2012 y la norma definitiva fue publicada en el Registro Federal el 3 de Enero del 2013. La Regla de Perdón Provisional fue anunciada por el Departamento de Seguridad Nacional.
El perdón sirve para reducir substancialmente el periodo de tiempo que un inmigrante que o bien ingreso al país sin inspección o permaneció en este con una visa expirada, debe permanecer lejos de su familia después de haber solicitado una visa de inmigrante y un perdón de inadmisibilidad en los Estados Unidos por presencia ilegal. Con anterioridad a la norma más reciente, la mayoría de los inmigrantes que habían sido considerados no elegibles para admisibilidad en los Estados Unidos estaban obligados a regresar a su país de origen, donde podrían permanecer durante meses o incluso años a la espera de la aprobación de un perdón de inadmisibilidad, causando grave sufrimiento a los miembros de la familia que permanecían en los Estados Unidos.
Ahora a través del Perdón Provisional por Presencia Ilegal, los inmigrantes inadmisibles por presencia ilegal a los Estados Unidos pueden permanecer en el país mientras su solicitud de perdón es procesada. De acuerdo con las reglas del USCIS, “el solicitante debe ser un familiar directo de un inadmisible en los Estados Unidos solo por causa de presencia ilegal y debe demostrar que la denegación del perdón resultaría en graves dificultades para su conyugué o padre ciudadano(a) de los Estados Unidos”.
Los inmigrantes no serán obligados a regresar a su país de origen hasta que, o bien sus perdones hayan sido aprobados, en cuyo caso deberán regresar para asistir a su entrevista consular y obtener su visa, o su perdón sea negado. En la actualidad, los inmigrantes considerados inadmisibles por cualquier otra razón que la presencia ilegal (fraude, actividad ilegal, etc…) no son ilegibles para un Perdón Provisional de Presencial Ilegal.
Para más detalles sobre el proceso de cambio favor de visitar el sitio web de regulaciones.
Ruby L. Powers
Abogada de Inmigración especialista en perdones I-601 y I-601A.
Oficina Jurídica de Ruby L. Powers
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How does this new law affect me and my wife in which i already have the appointment in ciudad juarez on january 18 2013. Will this law help me in a good way at all?
My Wife was deported in December 2010, due to our fears of deportation she didnot go to Court due to me telling her not to go. She had her Interview in the Embassy where she was told she would barred for 5 years from her removal date. I did not know the repercussions of the decision I made. We had no one to turn to I did not know what to do please help me I don’t know how I have made it this far. I am asking for your help somehow my wife has to be able to return back to the U.S. Thank you, Aaron Dauphin
will be very hard to prove the relationship between father and son?
I have a friend who went through the immigration court process until he exhausted all immigration options. Now he has be ordered to leave the country within 30 days. He of course, has not left the country because he has two daughters who are US citizens and one is 12 the other 13. He is not a criminal but during his final hearing he got real nervous and didn’t know how to properly answer questions. Is he eligible to apply for this waiver?
He would definitely need a legal consultation right away but as the rule states, he would have to reopen his case and then ask to administratively close it with no future hearings to then follow through with the rest of the process. But there are consequences if his motion to reopen the court order is denied. There might be a lot more to his case that he told you and he might not otherwise qualify if he has adverse criminal or immigration history. Thanks, Ruby
I find it is a lot harder to prove the parent/child hardship but it has been done but the parent would need to suffer extreme hardship if the son was deported and explain why the father can’t move to the son’s home country. Thanks, Ruby
She might qualify for a waiver to overcome this. I need to know more about the facts of the case. You should consult with an immigration attorney to learn more. Thanks, Ruby
If you didn’t go to the appointment and want to use this process and otherwise qualify, you will need to cancel the registration for the visa process with the consulate and start all over with a new I-130, new NVC process and apply for the I-601A in country. Feel free to schedule a consultation to learn more. Thanks, Ruby
My husband and I have been together for 3 years now and have bought our home together. I have children but not with him but he is the only father they know. Oldest is 7 baby is 4. It would hurt them very much if he left. He had a DUI 4 years ago and when he crossed at age 15-16 he was got the first time. Will this disqualify him? Is there anything I can do other then return to his country with him and wait it out? He is our life and I would do whatever necessary! Please help!
I highly suggest he gets a FOIA and FBI background check to find out what happened when he was 15-16. He still might have a chance. I highly suggest you get a legal consultation with a qualified immigration attorney who has experience with waivers and unlawful presence. Thanks, Ruby (Houston Immigration Attorney)
Hi:)I’m a US citizen,my husband is a seaman who jumpship C1 visa who is out of status since 1999.Can I petition my husband using the waiver this coming march 4?is he covered with the waiver extreme hardship?i am currently pregnant and has 1 kid.thank you.
Me and my husband just got married..we have been together for 6 years but just got married…he is a us citizen..I’m from mexico does this law help me…im 21 and he is 24 …i had papers in with my mom and the case stoped when i turned 21
If you have the I-130 approved, paid NVC and emailed them, and he otherwise qualifies (no crimes, no deportations, etc.) then you can use this process to for him to pursue legal permanent residency. Feel free to contact us for a consultation. Thanks, Ruby
Paloma,
If you entered only one time and illegally or legally and overstayed, have no crimes, no deportations, no false claim to citizenship, etc. it appears you could use this waiver process. It would be good to see what your mom’s petition was and if you can use it somehow. I would suggest you get a consultation to cover all aspects of the case. Thanks, Ruby
HELLO, I HAD MY APPOINTMENT IN JUAREZ THIS PAST JANUARY 10TH, BUT HAD TO RE-SCHEDULE BECAUSE I WAS PREGNANT AND DUE ON JANUARY 20TH, THEY SAID THAT THEY WERE GOING TO SEND ME ANOTHER APPOINTMENT, DO I QUALIFY FOR THIS NEW WAIVER? AND DO YOU KN0W HOW LONG UNTIL I GET THE NEW APPOINTMENT? THANKS IN ADVANCE FOR YOUR RESPONSE…….