Explaining the Department of Homeland Security and United States Citizenship and Immigration Services Proposal for Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens

February 13, 2012

On January 9, 2012, the U.S. Citizenship and Immigration Services and the Department of Homeland Security submitted a proposed rule for provisional waivers of inadmissibility for certain immediate relatives of U.S. citizens. There has been some confusion lately from many dealing with immigration issues regarding this proposed rule that would allow for individuals to obtain a waiver (“el excepcion”) without leaving the United States. Many believe that this proposed rule is now the law. They also believe that this rule allows for them to get a visa without leaving the United States. This article is written to resolve the growing confusion over the rule and explain what the proposal real means for those seeking visas.

First, as stated, the rule is only a proposed rule. This means that the current law has not yet been changed and that USCIS has only put forward the possibility of a change in the law. As such, this rule is not the law yet and probably will not be for several years, if at all. In fact, in the proposed rule, the government specifically states “Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected, and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.”

The current law requires individuals who have accrued a certain amount of unlawful presence in the United States to be processed at a consulate abroad. The current process also requires that these individuals apply for, and receive, a waiver (excepcion) through application for the same at the consulate. However, the proposed rule, as stated in the Department of Homeland Security’s Notice of Intent would change the law as follows:

  • For immediate relatives of US citizens that are barred on the basis of 212(a)(9)(B)(v) (accrual of unlawful presence) to apply for provisional waivers prior to departing the United States for Consular processing; and
  • The proposed provisional waiver program will be limited to immediate relatives of U.S. citizens who can demonstrate extreme hardship to a U.S. citizen spouse or parent; and
  • The proposed program will also be limited to those whose sole bar to admission is accrual of unlawful presence, which is a flaw in the rule.

The proposed rule will not change the law as follows:

  • USCIS and DHS does not intend to change the legal standard for assessing the eligibility for the waivers; and
  • The proposed provisional waiver program will not apply to those seeking a visa through a lawful permanent resident; and
  • Individuals will still be required to depart the United States for consular processing. The waiver is not effective until the alien leaves the United States.

I hope this clears up the confusion that this proposal has created among many of those trying to navigate the complex web of immigration law.

For an update, See Proposed Provisional Waiver Rules are Published by DHS and USCIS.

At Shunneson Law I am devoted to helping you with your immigration problems. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)


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