The Stateside Waiver Rule: Who Qualifies And How?

Read an advance of copy of the rule—–> Stateside Waiver Rule (NOTE: THE STATESIDE WAIVER RULE/PROCEDURE WILL NOT BE EFFECTIVE UNTIL 60 DAYS AFTER IT IS PUBLISHED IN THE FEDERAL REGISTER.  AS OF TODAY, IT HAS NOT YET BEEN PUBLISHED.  UPDATES WILL BE POSTED ON THIS BLOG)

Who’s eligible?  Any foreign national who:

  • Is present in the United States at the time of filing the application for a provisional unlawful presence waiver, and for biometrics collection at a USCIS ASC;
  • Upon departure, would be barred from readmission to the US only because of unlawful presence and for no other reason, such as a criminal conviction;
  • Is the spouse or parent of a US citizen;
  • Is the beneficiary of an approved immediate relative petition;
  • Has a case pending with the Department of State based on the approved immediate relative petition and has paid the immigrant visa processing fee as evidenced by a State Department Visa Processing Fee Receipt;
  • Will depart from the United States to obtain the immediate relative immigrant visa; and
  • Can prove that refusal of admission tot he U.S. as a legal immigrant would cause  extreme hardship to his or her U.S. citizen spouse or parent.

Who’s not?  Any foreign national who:

  • Is inadmissible on any other ground e.g. criminal, national security.
  • Under the age of 17;
  • Does not have an application for immigrant visa pending with the Department of State, based on the approved immediate relative petition, and has not paid the immigrant visa processing fee;
  • The Department of State initially acted to schedule the immigrant visa interview prior to the date of publication in the Federal Register for the approved immediate relative petition on which the provisional unlawful presence waiver is based, even if the interview has since been cancelled or rescheduled after the date of publication in the Federal Register;
  • Is in removal proceedings, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A;
  • Is subject to a final order of removal issued under section 217, 235, 238, or 240 of the Act or a final order of exclusion or deportation under former 236 or 242 of the Act (pre-April 1, 1997), or any other provision of law (including an in absentia removal order under section 240(b)(5) of the Act);
  • The foreign national is subject to reinstatement of a prior removal order under section 241(a)(5) of the Act; or
  • The foreign national has a pending application with USCIS for lawful permanent residence.

About David Leopold
Past President American Immigration Lawyers Association (AILA), In-the-Trenches practicing immigration Attorney, Blogger, Activist, Photographer, Educator, World Traveler. All opinions are my own.

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