On January 2, 2013, Secretary of Homeland Security Janet Napolitano announced that the USCIS’ long-awaited “provisional waiver program” for visa applicants facing the “unlawful presence” bar to readmission will be implemented as of March 4, 2013. The new rule represents a marked change from the current procedure, which requires such applicants to undergo a lengthy and harrowing process to seek a waiver from outside of the US, after their immigrant visa is refused under the three and ten year “unlawful presence” bar. The new procedure will allow for certain individuals who are ineligible to adjust their status to green card in the US to seek a “provisional waiver” of the unlawful presence bar while still in the US, prior to their departure to apply for the immigrant visa abroad, also known as “consular processing.” See Consular Processing  According to USCIS Director Alejandro Mayorkas, “the law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves…The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

In 1996, Congress overhauled the Immigration & Nationality Act (“INA”) by adding many new grounds of inadmissibility to and removability from the United States. Among the more controversial grounds of inadmissibility was the 3 year bar from admission for any person who has previously been “unlawfully present” in the US for a period in excess of 180 days, and a 10-year bar if unlawfully present for 1 year or more. Departure after accruing the requisite period of unlawful presence triggers the bar from readmission, such that persons who are eligible to adjust status in the US, even after having accrued lengthy periods of unlawful presence, are not subject to the bar.

Those persons who have an immigrant visa available to them, but who are ineligible to adjust status in the US, however, must make a difficult decision to leave the US and their loved ones behind to apply for a waiver in conjunction with their immigrant visa application at the US Embassy or Consulate in their home countries. This is true for many “immediate relatives” of US Citizens, which includes spouses and parents of US Citizens, who did not enter the US legally or do not qualify for an exemption from the legal admission requirement under Section 245(i), which lapsed on April 30, 2001.

Unfortunately, the new waiver procedure will only apply to applicants who can show that theirUS Citizen spouse or parent would suffer extreme hardship if they are not readmitted and will not apply to family members of lawful permanent resident petitioners and will not include immediate relatives if their qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only due to “unlawful presence,” and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad.