DHS announced today, that the long-awaited provisional waiver process – announced back in April 2012 – has been finalized and will become effective March 4, 2013. The provisional waiver allows for the filing of a new form, I-601A, for qualifying relatives of US citizens present in the US PRIOR to a departure to attend an immigrant visa interview at a US Embassy abroad. This change allows for a largely anticipated reduced amount of time of separation between the foreign national and US relative(s) while the foreign national tries to obtain legal residence from abroad.

The final regulation provides the following:

1. The foreign national must be present in the US; those outside the US right now cannot benefit.

2. The foreign national must be sponsored by a US citizen spouse, parent, or minor child – US citizen sibling sponsors or relatives of legal resident sponsors will not qualify for this waiver.

3. The foreign national waiver is only for those would would trigger a bar based on unlawful presence – not for criminal or removal issues.

4. The rule includes those eligible family members who have had removal proceedings administratively closed and whose cases have not been recalendared at the time of filing the provisional waiver application. However, anyone with a final order of removal, or who has been previously removed, will not be eligible.

5. The rule is not applicable for those with already scheduled immigrant visa interviews.

6. The criteria for meeting the standard of “extreme hardship” has not changed or is different from that required in the regular I-601 Waiver process.

This change in the regulations is a huge victory for US citizen families attempting to get loved ones processed for a green card abroad at US Embassies. It will most likely impact processing in Ciudad Juarez, Mexico significantly which is the busiest US Embassy in the world. The change will permit foreign nationals who have a visa interview scheduled to avoid the need to file the waiver AFTER the interview and await another adjudication sometimes lasting up to 1 year. This resulted in the foreign national waiting outside the US this entire time for the process to complete itself, separating families for long periods of time.

For more information on the I601A provisional waiver and possible eligibility, contact Colorado immigration lawyer Catherine Brown to discuss further.