Washington, D.C., March 1, 2012 – The U.S. Citizenship and Immigration Services (USCIS) announced in January 2012 its intent to change the filing process and consideration of waivers of the 3 and 10 year unlawful presence bars filed in connection with an immediate relative visa petition by a US citizen.
However, this rule is not in effect and provisional waiver applications MAY NOT be submitted to USCIS at this time. Therefore, petitioners SHOULD NOT pay any immigration practitioner claiming to be able to file an application now.
USCIS is currently ONLY CONSIDERING instituting a regulatory change that would allow certain relatives of U.S. citizens to request a provisional waiver (“I-601 Provisional Waiver”) of the unlawful presence bars before departing the U.S. This Waiver is intended to streamline the waiver process while minimizing the separation between applicants and their U.S. citizen family members.
Currently, spouses, children and parents (“immediate relatives”) of U.S. citizens who have accrued more than 6 months of unlawful presence (in the U.S. without lawful immigration status) are barred from lawful reentry for 3 to 10 years.
The change in processing would allow individuals who are eligible for an immediate relative visa (who have an approved I-130 petition), who can demonstrate that separation from any U.S. citizen family member would cause extreme hardship, and who are inadmissible only due to unlawful presence may be eligible to apply for the provisional waiver of inadmissibility prior to departing the U.S. for consular processing abroad.
Therefore, these applicants for immediate relative visas would learn before departing the U.S. if they are approved a waiver of the 3- or 10-year bar to reentry, and could make informed decisions about whether to continue with the visa process, if so.
However, on February 22, 2012, USCIS announced that the provisional waiver will not be in effect until a final rule will be published in the Federal Register. No date has been announced. USCIS will not accept any applications for the I-601 provisional waiver until the rule is in effect, and will return any applications and fees submitted in the interim.
Individuals considering requesting the provisional waiver are advised NOT to pay or retain any attorney or immigration practitioner claiming to be able to file an application for the provisional waiver until the final rule goes into effect. In particular, beware of unauthorized practitioners who claim to be able to file an application while the regulations are pending. The provisional waiver rule will likely not be in effect for several months.
If someone offers or charges you for filing this application, you can come to CARECEN for advice on how to file a complaint against that person. If you have questions about the I-601 Provisional Waiver of inadmissibility or wish to confirm that the rule is now in effect, please contact CARECEN at 202-328-9799.
The Central American Resource Center (CARECEN) is a community-based non-profit organization that fosters the comprehensive development of the Latino community in the Washington metropolitan region. CARECEN was founded in 1981 to protect the rights of refugees arriving from conflict in Central America and to help ease their transition by providing legal services.
Today, CARECEN provides direct services in immigration, housing, and citizenship while also promoting empowerment, civil rights advocacy, and civic training for Latinos.
