Up until now, the extreme hardship waiver, also known as the I-601 waiver for immigrants who entered the United States illegally (without a visa), must be filed at the US Embassy or Consulate abroad at or before the visa interview. This requirement caused many immigrants to not file the I-601 waiver fearing that if the Embassy or Consulate does not approve the waiver, the decision basically renders the immigrant visa applicant unable to return to the United States because no visa will be issued. Furthermore, by leaving the United States, the immigrant visa applicant will also trigger a 3 or 10 year bar under US Immigration law. Consequently, many immigrant visa applicants with approved Form I-130 decide to hold off on filing the visa due to the high risk of being separated from their families if the I-601 waiver is not approved.
This new provisional waiver filing process change allows certain immediate relatives of U.S. citizens who are physically present in the United States and are seeking permanent residence to apply for and receive provisional unlawful presence waivers before departing the U.S. for consular processing of their immigrant visa applications abroad. This new process will significantly reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the immigrant visa process to become permanent residents.
Please note that this new process is not yet in effect and USCIS will not accept any applications until March 4, 2013. This final rule is separate and distinct from the Form I-601 centralization process.
Also, if you are considering applying for permanent resident status but did not enter the United States with a visa, you should first explore 245(i) protection, which allows you to adjust your status in the United States. You may be protected under 245(i) if someone petitioned for you or your parents before you attained the age of 21. If you have any further question about the provisional waiver or 245(i) provision please feel free to contact my office for a free consultation.
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JCS Immigration & Visa Law office is located at
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