On March 4, 2013, a new USCIS rule went into effect, allowing certain immediate relatives of U.S. citizens (spouses, parents of adult U.S. citizens, and minor children) who are physically present in the United States to request a provisional unlawful presence waiver prior to traveling abroad for consular processing of their immigrant visa applications. USCIS’s approval of an applicant’s provisional unlawful presence waiver prior to departure to attend his or her immigrant visa interview at the home consulate, should, in most cases, allow a Department of State (DOS) consular officer to issue the immigrant visa without delay if there are no other grounds of inadmissibility and if the immediate relative is otherwise eligible for an immigrant visa. This new process will significantly decrease the amount of time that U.S. citizens are separated from their family members and hopefully will encourage more immediate relatives to seek an immigrant visa if they are otherwise eligible for one but had been reluctant to travel abroad for an unknown period of time.
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the U.S. must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the U.S. after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the DOS has determined that they are inadmissible.