04 January 2013


USCIS has announced a law that will allow certain immigrants to apply for a waiver of the unlawful presence bar prior to leaving the United States

On January 2, 2013, the Department of Homeland Security announced a long-awaited rule that may help certain immigrants, currently in the United States illegally, who apply for permanent residence and have to leave the United States to receive immigrant visa in a foreign country. The new rule allows such immigrants to seek a waiver of the “unlawful presence bar” against re-entry, prior to their trip abroad.

Before the new rule, when such immigrants travel abroad to complete their immigration process they would face up to a ten-year bar because of illegal entry or overstaying in the United States and, subsequently, an immigrant would have to seek a waiver while in a foreign country. Applying for a waiver could be a lengthy process and, if the waiver is not granted, an immigrant would be precluded from returning to the United States up to ten years.

Under the new rule, such immigrants would be able to apply for a provisional waiver in the United States and await the decision without leaving the country. Once the waiver is approved, an immigrant may travel abroad to complete immigration process with peace of mind that he/she will not be separated from his/her family in the United States for extended period of time.

It is important to note, though, that such waiver would be provisional and could be subsequently revoked if new information comes to light or an immigrant no longer qualifies for a waiver because of change of certain facts or circumstances.

Who can apply?

In order to apply, an immigrant has to be physically present in the United States and be a spouse or a child of a U.S. citizen. Immigrants who are in removal proceedings or have an order of removal or voluntary departure cannot apply unless they obtain a special permission or a court order.

Who is eligible for a waiver?

In order for a waiver to be approved, an immigrant must show that denial of his/her application would result in extreme hardship to his/her qualifying relatives in the United States.

What is being waived? 

The grant of a provisional waiver can only waive a bar resulted from unlawful presence in the United States and cannot waive other grounds, such as criminal convictions, etc. 

When to apply? 

The new rule will be effective as of March 4, 2013. In order to apply for a provisional waiver, an immigrant must have approved immigrant petition filed on his/her behalf.

How to apply?

Although an application could be filed by an immigrant pro se, there might be certain facts and circumstances affecting immigrant’s eligibility to apply for and receive a waiver. Please contact our law office at (973) 473-6889 and schedule an appointment to review your case and advise you on available options.

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