Long standing Department of Homeland Security policy (and INS before it) requires foreign nationals seeking a waiver of inadmissibility to depart the United States and submit the waiver application at the US consulate or embassy where they will apply for an immigrant visa. The proposed regulation would allow such applicants to submit the waiver application before departing and reduce the period waiting outside from months and sometimes years to a few weeks.

A significant problem with waiver applications is the apprehension that many applicants feel departing the United States.  If the applicant departs, files the waiver application and it is denied, she may not return to the United States.  There are many foreign nationals who are eligible for waivers, but never apply because of the fear of being unable to return if the waiver is denied.

A second problem is that the largest group of potential waiver applicants are Mexican nationals.  The primary location for waiver processing in Mexico is Ciudad Juarez.  Ciudad Juarez is a dangerous city where thousands have been killed in Mexico's drug wars and even US consular employees have been shot to death leaving work.  Ciudad Juarez is not the safest place to wait with your family for a few months while awaiting a decision on a waiver application.

Under the proposed regulation, USCIS will allow eligible immediate relatives of US citizens to apply for and receive "provisional waivers" of unlawful presence before they leave the United States to consular process their immigrant visa petitions.

Our office has been successful in filing I-601 waivers for unlawful presence, but some clients have had to wait as long as 1.5 years in Mexico while USCIS processed the waiver application, sometimes referring it to the USCIS office in El Paso, Texas.  These waits were unpleasant for our clients and separated families for months and sometimes year.  On at least on one occasion, a 1.5 year wait contributed to a couple's divorce.

This regulation will change the playing field and make waiver applications much less frightening for applicants.

For more information about unlawful presence
and the 3 and 10 year bars, click here.

For more information about waivers, click here.