April 5, 2012 

USCIS Proposes Process Change for Certain Waivers of Inadmissibility

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would significantly reduce the amount of time that U.S. citizens are separated from their immediate relatives, including spouses, children and parents, when such individuals are required to obtain an immigrant visa abroad in order to become lawful permanent residents of the United States. The proposed rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground underlying their inadmissibility while remaining in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause the U.S. citizen extreme hardship. At present, U.S. citizens are often subjected to months of separation from their immediate relatives while their cases are processed overseas. Importantly, the rule would not alter how USCIS determines eligibility for a waiver of inadmissibility or the criteria for establishing extreme hardship.

In addition to significantly reducing the term of separation between U.S. citizens and their immediate relatives abroad, the new rule also proposes creating a new form for immediate relatives of U.S. citizens who file an application for a provisional unlawful presence waiver before departing the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The new form would only apply to immediate relatives of U.S. citizens who are already eligible for an immigrant visa based on an approved immediate relative petition.

The proposed rule will not go into effect until USCIS publishes a final rule with an effective date in the Federal Register. Members of the public who wish to submit formal input on the proposed rule can do so by visiting www.regulations.gov during a comment period that runs from April 2, 2012 through June 1, 2012. Detailed information on the proposed rule is also available at www.uscis.gov/provisonalwaiver.