U.S. Citizenship and Immigration Services (USCIS) has announced a proposed change that would shorten the time that U.S. citizens are separated from close family members who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. The proposed change to the regulations would allow certain immediate relatives of U.S. citizens to apply for a provisional hardship waiver prior to departing the United States for consular processing of their immigrant visa applications. This change would benefit foreign nationals who are subject to 3-year or 10-year bars to re-entering the United States after departure because of periods of unlawful presence in the United States. Currently, foreign nationals who face a bar to re-entry can apply for a hardship waiver based on their qualifying relationship to a U.S. citizen, but only after they have departed the United States. Since the processing times for these waivers is very lengthy, applicants are often separated from their U.S. citizen relative for long periods of time without knowing if they will be able to return to the United States.

The proposed change would minimize this separation time because the applicant would be able to submit the provisional waiver application while still in the United States and remain in the United States while awaiting a decision on the waiver. If the waiver application is approved, then the individual would depart the United States and attend an immigrant visa interview abroad. If there are no other bars to admission, the waiver would be finalized, and the individual would be granted an immigrant visa and admitted to the United States as a permanent resident.

The proposed procedural change will not take effect until USCIS publishes a final rule with an effective date in the Federal Register. The comment period for the proposed rule started April 2, 2012, and ends June 1, 2012. Comments may be submitted here.

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