On January 3, 2013, the USCIS published the final rule for provisional waivers with the effective date of March 4, 2013. Meaning, the USCIS will not accept waiver regulations until then. However, if you have not filed the I-130 petition, a step necessary to file the provisional waiver, you can do this now.
What is this new rule?
Certain relatives of U.S. citizens are ineligible to apply for their legal residence while in the United States, and instead, must leave the country to apply for an immigrant visa at the U.S. Consulate in their home country. The problem is that many applicants face a 3- or 10-year bar for the time in which they resided in the United States unlawfully. Such applicants must submit a waiver to lift this restriction by showing "extreme hardship" to a qualifying family member. Under the regular waiver process, this waiver must be filed after the visa interview abroad and while the applicant waits outside the U.S., away from their families. Many have elected to not pursue their residence for fear of denial, lengthy separation from family, and violent conditions back home. This rule alleviates these concerns by allowing applicants to file their waiver applications while in the U.S. instead of from outside the country.
At this time, this rule only applies to applicants who are applying through a U.S. citizen spouse, U.S. citizen parent (if the applicant is under 21 years), or U.S. citizen son/daughter (if 21 or over). In other words, the applicant must prove "extreme hardship" to a U.S. citizen spouse or parent.
What is the process?
After the I-130 petition is approved and the visa fee bills paid, the applicant must file the waiver application (on a new form I-601A) with USCIS without first having to leave the U.S. If the waiver is approved conditionally, the applicant then schedules the visa interview to finalize the process in his or her home country. Essentially, this waiver is not a substantive rule; it simply changes the steps in which one applies for a waiver. But it makes a world of a difference to those who need to apply for a waiver.
What will the new form and filing fees?
Form I-601A. Filing fee $585 plus biometrics fee of $85 ($670). No fee waiver available for I-601A. There will be fingerprints taken, but no interview.
This is a general description. There are a lot of details in the rules and comments, which amounted to approximately 150 pages. Not everyone qualifies, and there could still be potential issues abroad. You should consult with a qualified immigration attorney to discuss eligibility and hardship. Contact us if you wish to make an appointment to see if you qualify.