On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States. The details are as follows:
An individual may seek a provisional unlawful presence waiver if he or she:
- is a parent child or spouse of a US citizen
- Is physically present in the United States;
- Is at least 17 years of age;
- Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
- Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
- Is not subject to any other grounds of inadmissibility other than unlawful presence; and
- Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.
An immediate relative would not be eligible for the proposed process if he or she:
- Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
- Is subject to a final order of removal or reinstatement of a prior removal order;
- May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
- Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad
The rule is not final yet and will not be effective until final. Therefore, one cannot file a provisional waiver yet and must wait for further action from USCIS. If you are not sure about the process or would like to get your the strength of your waiver case evaluated, then you should talk to a Denver immigration lawyer.