On Jan. 6, 2012, the Obama administration proposed a welcome change in processing the I-601 waivers filed by the immediate relative of U.S. citizens. The new procedure will allow immediate relatives to file for a “provisional” unlawful presence waiver and await adjudication while remaining in the U.S. If such alien is found eligible for a waiver, the United States Customs and Immigration Services (USCIS) will grant a provisional waiver. Visitors who fall under this category will still have to depart the United States to process their visa and appear for an interview at a U.S. consulate abroad before they can reenter the country.


The purpose behind the proposed change is to minimize the extent to which bureaucratic delays separate Americans from their families for long periods of time. This would apply to individuals whose only ground of inadmissibility is unlawful presence.

By way of background, undocumented immediate relatives of U.S. citizens may not be eligible to file for adjustment of status on the premise that they are deemed “inadmissible” because of accruing “unlawful presence.” An I-601, Application for Waiver of Grounds of Inadmissibility, is filed in such cases to permit an undocumented alien to gain admission as a lawful permanent resident. Currently, to obtain a waiver of unlawful presence and be able to re-enter the United States, the applicant has to show extreme and unusual hardship to his/her U.S. citizen or permanent resident spouse, son or daughter if the alien’s admissibility cannot be waived.

Currently, such individuals have to leave the United States and apply for a waiver from their home country, after having had an initial interview at the consulate. However, if they do depart, they face a 3- to 10-year bar from returning to the United States depending upon their length of unlawful stay. Upon filing the waiver, the ultimate decision on it is made by USCIS. This often takes a long time, causing bureaucratic delays and often stranding the individual in his or her home country, separated from their U.S. citizen spouse or children.

It is important to note that there is no change in the law but only in the procedure of processing such waivers. More importantly, this change is applicable only to the immediate relatives of U.S. citizens and not green card holders. It is unclear as to why the immediate relatives of green card holders have been left out from the new procedure. It is anticipated that applying this rule to relatives of permanent residents may be implemented later this year after considering public comments on the same. n

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.