State-side Waiver Program

In January 2013, the Department of Homeland Security published a rule for how certain undocumented relatives of U.S. citizens apply for a waiver of the time they were in the U.S. without permission. The new state-side waiver rule will result in significantly shorter periods of family separation by allowing a green card applicant to apply for and receive an approved waiver before leaving the U.S. for the consular interview.  As a result, the time that the applicant for permanent residence will have to spend outside the U.S. could be shortened to as little as a week. However, not all foreign nationals who have a U.S. citizen immediate relative (spouse, parent, child over 21 years of age) will benefit from this rule.

To be eligible for the new waiver, an individual must meet the following criteria:

  • Be physically present in the U.S.;
  • At least 17 years of age at the time of filing;
  • Have an approved immigrant visa petition as the immediate relative of a U.S. citizen;
  • Have an immigrant visa case pending with the U.S. Department of State;
  • Be inadmissible based on unlawful presence in the United States;
  • Meet all of the requirements of the provisional unlawful presence waiver.

It is important to note that the program is only available when there is hardship to a U.S. citizen spouse or parent, not a lawful permanent resident spouse or parent. An individual may become eligible for the program even if they are in removal proceedings if they are able to successfully petition the government to administratively close their removal proceedings and they meet the other eligibility requirements.

Individuals are not eligible for an unlawful presence waivers if they meet the following criteria:

  • The eligibility requirements have not been met;
  • Have a pending application to adjust status to permanent resident;
  • Are in removal proceedings that have not been administratively closed or re-calendared;
  • Have been ordered removed, excluded, or deported from the U.S. or are subject to reinstatement of a prior removal order;
  • DOS acted to schedule your immigrant visa interview prior to January 3, 2013;
  • Have not proven extreme hardship to a U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion;
  • USCIS has reason to believe that DOS may find you inadmissible for grounds other than unlawful presence.

Contact us for additional information on the state-side waiver program, and guidance through  what can be a complex process.