New immigration laws 2013, provisional exemption takes effect on March 4, 2013.
Applicants for visas based on family relationship who are immediate relatives such as spouses, children and parents of US citizens can begin applying for interim relief on their illegal presence before leaving the United States for their visa interview at a US embassy or consulate of the United States
It is expected that this process will reduce the time that US citizens are separated from their relatives during the process of obtaining permanent residence.
current immigration laws require immediate relatives of US citizens traveling outside the United States for permanent residence. If you have more than 180 days of unlawful presence, then you must apply for a waiver of inadmissibility under section 212 (a) (9) (B) of the Immigration and Nationality Act before returning to the United States. Existing laws dictate that a family can not file Form I-601, Application for Waiver of Grounds of inadmissibility before departure and presentation to the Department of State consular officer and the officer makes a determination that really are not admissible in the United States.
What you need to know about the new process:
• The new provisional waiver process will not change the process for immigrant visa. Even if your provisional unlawful presence waiver is approved, you still have to leave the United States for immigrant visa interview with a consular officer of the United States abroad.
• Provided that a provisional unlawful presence waiver is approved, takes effect only after the following situations:
1. You leave the United States and appears for the immigrant visa interview. Do not leave until the Department (DOS) State National Visa Center (NVC) to notify you of the date scheduled for immigrant visa interview at the US embassy or consulate and
2. A DOS consular officer determines that you are admissible to the United States and you lena all requirements to receive an immigrant visa.
• Not be eligible for provisional unlawful presence waiver process if cancellation or no show their immigrant visa interview.
• If you are in deportation proceedings, you are not eligible for a temporary waiver of unlawful presence unless, at the time of filing your Form I-601A, their performances are administratively closed and have not been put back into the Department of Justice, Executive Office for Immigration Review (EOIR) calendar to continue their deportation proceedings.
• Although USCIS does not provide for the placement of I-601A candidates in deportation proceedings, USCIS will present Department of Homeland Security (DHS) and the USCIS Notice to Appear (NTA) commencing guidelines governing deportation proceedings. For more information on USCIS priorities NTA, see USCIS Memorandum of Policy, revised for the referral and issuing notices to appear (NTA) in cases involving ineligible and removable aliens (Nov. 7, 2011) guidelines.
All listed requirements must be met for you so that you are eligible for a provisional unlawful presence waiver:
1. Be 17 years of age or older.
2. Be an immediate relative of a US citizen (Not an immigrant preference category with an available visa). An immediate family member is an individual who is the spouse, child or parent of a US citizen ..
3. Have a Petition approved Form I-130, Petition for Alien Relative, or Form I-360, Petition for Amerasian, Widow (er), or Special Immigrant.
4. You have a pending immigrant visa case with DOS for the approved immediate relative petition and have paid the processing fee DOS immigrant visa.
5. Be able to demonstrate that the denial of entry to the United States causes extreme hardship to US citizen spouse or parents.
6. Be present in the United States to apply for exemption from the unlawful presence provisional and provide biometric data.
7. Not have been invited for interview immigrant visa for DOS before January 3, 2013.
8. Comply with all other requirements for exemption from the provisional unlawful presence, as detailed in 8 CFR 212.7 (e) and Form I-601A and its instructions.
Who is NOT eligible for the new provisional waiver 2013:
You are not eligible if any of the following conditions: (See extract directly from the USCIS website).
1. You are subject to one or more grounds of inadmissibility that is not illegal presence.
2. DOS initially acted before January 3, 2013, to schedule your Immigrant Visa (IV) interview for the approved immediate relative petition on its provisional application unlawful presence waiver is based, even if your immigrant visa interview has been canceled You did not show up for the interview, and the interview was rescheduled from January 3, 2013.
Note: The date and time at which they must appear for your immigrant visa interview at the US embassy or consulate has chosen is not the USCIS date used to determine if you are eligible to file a Form I-601A. If DOS initially acted before January 3, 2013, to schedule your immigrant visa interview, you are not eligible to file a Form I-601A, even if you do the interview was presented or if you or DOS canceled or rescheduled their interview on or after January 3, 2013.
Instead, you may file a Form I-601, Application for Waiver of Grounds of inadmissibility, from outside the United States after being interviewed for an immigrant visa and the consular officer has been found to be inadmissible for land that can be waived.
3. You are in deportation proceedings that have not been administratively closed.
4. At the time of the presentation, which is in removal proceedings that have been administratively closed but were placed back into the EOIR calendar to continue its process of deportation.
5. You do not meet one or more of the requirements, as indicated on Form I-601A and its instructions.
If you need help applying for provisional unlawful presence waiver
Call immigration lawyers Orange County Yanez and Associates on 714.971.8000.