Final Rule Issued for Family Unity Waiver of Unlawful Presence

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    Final Rule Issued for Family Unity Waiver of Unlawful Presence

    The U.S. Citizen and Immigration Services (USCIS) has announced the final rule intended to significantly reduce the length of time that U.S. citizens must be separated from “immediate relatives” (parents, spouse and children) who are in the process of obtaining visas to become lawful permanent residents (LPR) in limited circumstances. The final rule permits those who qualify to apply for a provisional waiver of unlawful presence before leaving the U.S. for immigrant visa interviews in their country of origin.

    Existing Process for Seeking a Waiver of Unlawful Presence

    The existing application procedure requires that those who do not qualify for adjustment of status in the U.S. must return to their country of origin to participate in immigration visa interviews. An immediate relative of a U.S. citizen who has been in the U.S. unlawfully for a period of six (6) month must obtain a waiver of unlawful presence. The waiver application may not be filed until after the immediate family member has participated in an immigrant visa interview in the applicant’s country of origin and been

    determined to be inadmissible by the Department of State. This process will remain in effect for those that do not qualify under the new application procedures, such as those who are not immediate relatives.

    New Process for Obtaining a Waiver of Inadmissibility

    The new procedure for obtaining a waiver of unlawful process involves submission of a new form (Form I-601A) Application for a Provisional Unlawful Presence Waiver, which will be available shortly. A fee must be paid in connection with the 601A application, and no waiver of the fees is authorized. Applicants also will be required to establish that the waiver is necessary to prevent extreme hardship to the U.S. citizen parent or spouse. The applicant will only apply if the sole basis for inadmissibility is unlawful presence so those with disqualifying criminal convictions may not utilize this expedited process.

    While the new process requires departing the U.S. to participate in the consular immigrant visa process, the duration of the undocumented immigrant’s absence may be considerably reduced because the application may be submitted in the U.S. prior to leaving the country for the visa interview process. In addition to filing the form 601A, the applicant must also notify the Department of State’s National Visa Center of their intent to seek a provisional waiver. Additional information regarding using the new waiver procedure will be made available in the next few weeks at www.uscis.gov.

    Additional Requirements for Using New Unlawful Presence Waiver Procedure

    * The applicant for the waiver cannot be involved in pending open removal proceedings.

    * The U.S. citizen whose immediate relative is seeking a waiver must have had an I-130 (I-360) approved for the spouse or child if the child is single and under the age of 21.

    * While the immigrant visa must have proceeded to the National Visa Center stage with the filing fees paid, the Department of State must not have initiated the process of scheduling a consular interview.

    If you are seeking immigration assistance, attorney Irina Lust can evaluate your situation and advise you of your rights and options. Consultations are available by appointment in our White Plains, New York office. New York, Consultations are also available via WhatsApp, Viber, Skype, Facetime and Email.