New Jersey Lawyer News
Provisional Waiver of Inadmissibility
There is new relief available for aliens who entered the US illegally or overstayed their visas and are otherwise ineligible under Section 245(i) of the Immigration and Nationality Act. Beginning March 4, 2013, they can apply for a provisional waiver of inadmissibility. This new rule will allow the alien to file for a waiver while still in the US. If the provisional waiver is granted, the alien can apply for the immigrant visa abroad and will have some assurance that his waiver application before the consulate will be approved quickly and then return to the US as a permanent resident.
Under the present rule, an immigrant who cannot adjust status will have to leave the US to apply for a visa abroad and apply for a waiver. The intending immigrant will need to secure a waiver of his inadmissibility in order to get a visa approval. Some intending immigrants get stranded for months or years trying their luck on getting a waiver. Some get their waiver application denied and never return to the US.
The new procedure will be available for immediate relatives of U. S. citizens (parents, spouses, and children under the age of 21 and unmarried) who are unable to adjust status in the US. A provisional waiver is a request for the non-application of the penalty or bar caused by their illegal stay upon showing that a denial would cause extreme hardship to their U. S. citizen parent or spouse.
The new rule means that many immigrants, before leaving the US, will know that their immigrant visa application will probably be approved, and they will be back with their families. Only applicants who are an immediate relative of a US citizen (spouses, parents and children under the age of 21 and unmarried) can apply at this time, though the rule may later be expanded to other relatives.
Also, the provisional waiver is only available if the sole issue holding up a case is unlawful presence. Applicants who have criminal issues or other immigration violations cannot use the provisional procedure. Individuals who are in immigration court or who have an order of removal or voluntary departure may not qualify unless they get special permission from the government and a court order resolving their case.