New US rules for families seeking permanent residency visas

by Ray Clancy on January 10, 2013

New US rules for families seeking permanent residency visas

The United States is introducing new rules in March to reduce the time US citizens are separate from family members who are in the process of obtaining visas to become permanent residents. The Department of Homeland Security has published a final rule in the Federal Register that will ease the immigration path for applications from spouses, children and parents, reducing the time they are separated from their immediate relatives.

Secretary of Homeland Security Janet Napolitano said that changes establish a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin, adding that the process will be effective from 04 March. ‘This final rule facilitates the legal immigration process and reduces the amount of time that US citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,’ she explained.

US Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the rule when it was proposed last April and considered all of them in preparing the final rule. ‘The law is designed to avoid extreme hardship to US citizens, which is precisely what this rule achieves. The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon,’ said USCIS director Alejandro Mayorkas.

Under current law, immediate relatives of US citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the country and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa.

However, 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 had an immigrant visa interview abroad – and the Department of State has determined that they are inadmissible. In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a US citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her US citizen spouse or parent.

Comment from ExpatForum.com : “Hi, my husband has the opportunity to move to the US with work for a couple of years and we are really excited about the idea! San Diego seems like a really appealing place to spend this time. We have two children 6 & 8 and are looking for a nice area to rent with good schools, neighbourhood facilities, preferably some public transport and pretty close to the coast.”

USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process. Under the new process, immediate relatives must still depart the United States for the consular immigrant visa process but they can apply for a provisional waiver before they depart for their immigrant visa interview abroad.

Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS.

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