A new immigration rule taking effect March 4, 2013 will let immigrants reduce the amount of time they are apart from their families when applying for their lawful permanent residence, also known as a green card.

“This is only for applicants with United States Citizen spouses and/or United States Citizen parents,” said Evelyne M. Hart, a Southern California immigration attorney.” “This new I-601A waiver is going to mean a lot to families, especially families with young children or aging parents who are not in the best of health and who need the services of their alien spouse or alien child.” Before this new rule, undocumented applicants triggered the 3-year bar or the 10-year bar when applying for their immigrant visas in their country of residence. The American Consulate would ask the applicant for the waiver and the person waited in their country for up to one year waiting for a decision on their waiver. “Now, the undocumented applicant can wait in the United States for the waiver to be decided, which makes a big difference on the amount of time families are apart.”

The new rule is called “Provisional Unlawful Presence Waiver.” The law requires anyone who entered without inspection and is an immediate relative of a US citizen spouse or parent and wants to get permission to live in the United States to return to their country of origin to get an immigrant visa. If the person has entered without inspection and has resided in the US illegally for six months or more, before March 4, 2013, the person left the United States to apply for “a waiver to overcome the unlawful presence inadmissibility bar and while they waited in their country for up to 1 year, did not know if they would ever return to the United States,” said Evelyne Hart. “The waiver asks to prove extreme hardship to a U.S. Citizen Spouse or parent but the process inherently creates extreme hardship for all concerned,” added Evelyne Hart.

Beginning March 4, 2013, the foreign national can wait in the US for a waiver decision, instead of waiting up to one year in their home country. “That is a huge advantage,” said Evelyne Hart.

Once the waiver is approved, the person returns to the home country to apply for their immigrant visa. The wait will be approximately one to two weeks instead of one year as required under the old rule.

“This rule is not going to apply to everyone. It’s only going to affect some people . . . those who can prove extreme hardship, those who are married to a U.S. Citizen or have a parent who is a U.S. Citizen and have an approved I-130 or I-360 petition. Unfortunately, persons who are married to Lawful Permanent Residents or have Lawful Permanent Resident parents will not qualify, neither will those who need multiple waivers or are subject to the permanent bar,” Ms. Hart said. “The person applying is going to have to show that a long separation is going to create an ‘extreme hardship’ to the U.S. Citizen parent or spouse. Since this is the government and this is government paperwork, immigrants who are trying to apply for this hardship waiver are going to need help. They should consult with an immigration attorney who is familiar with the processes.”

The person applying for the waiver and the application to come into the U.S. to become a resident is still going to have to leave the country. But as stated above, the stay abroad will definitely be shorter, Ms. Hart said. The application will consist of the I-601A waiver form along with documents proving the extreme hardship. Once the Provisional Unlawful Presence Waiver is approved, the applicant leaves the United States to apply for their immigrant visa at the American Consulate in their country, knowing that they are returning with an immigrant visa. “The anxiety level is non-existent at this point,” commented Evelyne Hart.

Form I-601A, Application for a Provisional Unlawful Presence Waiver, will be available for official use beginning March 4, 2013.