What Exactly Is The Stateside Unlawful Presence Waiver Process?

On April 2, 2012, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule to to allow certain immediate relatives of U.S. citizens who have been unlawfully present in the U.S. to request waivers of the 3 and 10 year bars to readmission before departing from the U.S. to apply for an immigrant visa at a U.S. consulate abroad.  The new rule implements the provisional unlawful presence waiver process.  It is expected that the procedural changes will significantly reduce the length of time U.S. citizens are separated from their husbands, wives or children who, because they are ineligible to apply for an immigrant visa in the U.S., must depart the U.S. to apply at a U.S. consulate abroad.

It is also expected that rule change will streamline the waiver process and save tax dollars.

It is important to remember that the new regulation does not change the law.  Any foreign national that stays in the U.S. unlawfully for 180 days or more–after entering illegally, overstaying a period stay authorized by the government, or having been found out of status by a government official or immigration judge–is barred from readmission to the U.S. for up to 10 years. Nor does the filing or approval of a provisional unlawful presence waiver confer any legal status, protect against the accrual of additional periods of unlawful presence, authorize a foreign national to enter the United States without securing a visa or other appropriate entry document, convey any interim benefits (e.g., employment authorization, parole, or advance parole), or protect a foreign national from being placed in removal proceedings or removed from the United States in accordance with current DHS policies governing initiation of removal proceedings and the use of prosecutorial discretion.

If you or a  loved one believe you may qualify for a provisional stateside waiver you should seek the advice of a licensed attorney.

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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