In a move that was long overdue, USCIS has announced new procedural rules allowing certain green card applicants to apply for a waiver of inadmissibility for unlawful presence while still in the United States.
This new "provisional unlawful presence waiver" should really help many families. In the current system, immediate relatives of U.S. citizens who need a waiver of inadmissibility before applying for an immigration visa had to return to their country of origin and request the waiver at the time of their visa interview abroad. This resulted in families being separated from each other while the waiver was being adjudicated, a lengthy process which can take many months or longer. Even worse, when the immigrant is denied the waiver they are not be able to obtain a visa to return to the U.S. and rejoin their family.
A waiver of inadmissibility is an application to allow issuance of a visa to an otherwise ineligible applicant. An applicant who was unlawfully present in the U.S. for more than six months will not be given a visa before requesting and obtaining a waiver of inadmissibility. Under the new procedure applicants for an unlawful presence waiver can apply while staying in the United States pending the adjudication of the waiver. They no longer have to be separated from their family in the U.S. for an extended period of time if the waiver if approved. This only applies to a waiver for unlawful presence. Other waivers including those for a criminal inadmissibility must still be done abroad.
To apply for the new provisional unlawful presence waiver you will need to complete Form I-601A and show you meet the requirements including:
- You are currently in the U.S.
- You are at least 17 years old
- Your green card petition for permanent residency based on being an immediate relative of a U.S. citizen has already been approved by USCIS
As an attorney who has spent many years helping families with family-based green card petitions, I am pleased that the process has been improved and that families will be able to stay together during what often is a long process.