PROVISIONAL WAIVER: WHO IS ELIGIBLE?
On March 4, 2013, the provisional waiver took effect. These changes would allow certain immediate relatives (the spouse, children, or parents of a U.S. citizen) who can demonstrate hardship to a U.S. citizen spouse or parent to receive a provisional waiver of the unlawful presence bars before leaving the United States.
USCIS has identified immediate relatives of U.S. citizens as the class of aliens to consider for this procedural change as defined in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. 1151(b)(2)(A)(i), who must depart from the United States to obtain immigrant visas, and whose U.S. citizen spouse or parent would suffer extreme hardship if the applicant were denied admission to the United States. The term “immediate relative” means the spouse, parent or child (unmarried and under 21 years old) of a U.S. citizen, except that, in the case of a parent, the U.S. citizen son or daughter petitioning for an immigrant visa must be at least 21 years old. Unless an exception applies, the following classes of persons are ineligible for adjustment of status and must consular process: (1) those who entered the United States without inspection by an immigration officer, (2) who came in as crewmen, or (3) who entered the United States on a fiancé visa but did not marry their petitioner. Individuals applying for a waiver must also establish that the grant of the provisional waiver is warranted as a matter of discretion.
The proposed change would create a more streamlined and efficient process for waiver applicants whose sole inadmissibility ground is unlawful presence, while simultaneously minimizing family separation. If the waiver determination, with respect to unlawful presence, were made in advance of the immigrant visa interview and the applicant otherwise were eligible for the immigrant visa, the consular officer could simply issue the immigrant visa at the time of the visa interview, thus, significantly reducing the processing period consistent with the main thrust of the congress which is to focus on family unification of U.S. citizens and their immediate relatives. Prior to the provisional waiver, immigrant visa applicants can only submit their waivers after their interview at the U.S. Consular Post abroad pursuant to their immigrant visa petition and the waiver take months to adjudicate and If denied, the process takes even longer, posing a threat to the applicant to remain indefinitely in his/ her home country and away from his immediate family in the United States.
While this would be the best time to take advantage of this opportunity and file under the provisional waiver provisions, you are highly encouraged to seek the advice of a knowledgeable and reputable Attorney.
Leon Frommer has been a practicing attorney in the Los Angeles, California area and member of the State Bar of California since 1977. Besides practicing as an attorney, Leon Frommer has also served as an Arbitrator and Mediator in the Los Angeles Courts. He is also a member in good standing of Consumer Attorneys Association of Los Angeles (CAALA) and Public Justice Foundation. He also participates and supports many community and civic organizations the Filipino-America community and member of the Filipino-American Chamber of Commerce of Los Angeles (FACC,LA) and Past President of the LA Pacesetters Lions Club.
The information contained in this article is of a general nature, and not intended to serve as legal advice or carry any guarantee or warranty of success in any particular case. No attorney-client relationship is established with the presentation of this article.
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