Changes in Immigrant Waiver Procedures See Progress

The U.S. Citizenship and Immigration Services (USCIS) is continuing improvement efforts on the immigrant waiver application process. The USCIS published an April 2, 2012 notice of proposed rulemaking (NPRM) in the Federal Register, as a required step toward instituting such changes.

Waiver for Unlawful Presence

Changes proposed in the NPRM are intended to improve the procedures for certain applications for waiver or forgiveness of periods of unlawful presence in the United States. The changes pertain to such waivers requested in the immigrant (commonly referred to as the green card) context. Due to certain procedural requirements, individuals seeking this type of relief to become eligible for permanent residence must travel outside the United States and await decisions on their waivers in order to reenter.

This proposed regulatory change would allow the waiver to be filed and approved on a provisional basis prior to the required departure, for a limited group of foreign nationals. This is intended to reduce the time that a U.S. citizen is separated from his/her foreign national spouse and/or child/ren when such a foreign national requires a waiver of the unlawful presence bar. More details are available in our NewsBrief, Proposal to Facilitate Waiver Application Process (16.Mar.2012).

Existing Regulations Remain

The NPRM is open for public comment until June 1, 2012. During this period, the existing regulations remain in place until the effective date of any new regulation, which will require a separate, final publication in the Federal Register. As such, the provisional waiver is not in effect and is not available to potential applicants unless and until the USCIS publishes a final rule in the Federal Register specifying the effective date.

Current USCIS Policy / Procedures

At this time, the USCIS will reject any application requesting the provisional waiver and will return the application package and any related fees to the applicant. Given that the provisional waiver is NOT in effect at the time of this writing, applicants should be wary of unscrupulous individuals who claim the ability to file provisional waivers at this time for a fee. MurthyDotCom and MurthyBulletin readers will be updated if and when a final rule is published, or if there are other significant developments regarding immigrant visa waiver procedures.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.