New SHORTER Procedure for Applying for a Green Card Outside of the U.S.

On January 2, 2013, the Secretary of Homeland Security Janet Napolitano announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances.  This rule allows qualifying applicants to apply for a provisional unlawful presence waiver before they leave the United States for their immigrant visa interviews in their home countries. 

This is for people who have US Citizen immediate relatives applying for them, but will need to leave the U.S. to complete the process in their home country.  This is called Consular Processing and involves applying for an immigrant visa to reenter the United States as a lawful permanent resident - i.e. green card holder.  The problem that most people have in this situation have usually been in the US for a long period of time, so when they exit the US they trigger a bar to their return.  Most commonly, people trigger what is called the 10-year bar because they have been in the US without permission for over one year.  This only applies to people who have ONE entry into the US and when they leave for their visa appointment it will be their FIRST exit.  If you have more than one entry or exit, depending on how long you were in the country on each visit, you are likely NOT eligible to consular process. 

Now, once an applicant triggers the bar, in addition to applying for their visa to return to the US, they also need to file an I-601 waiver for the time they were here without permission.  This is basically asking immigration to waive or "pardon" the time they were here when they shouldn't have been.  BEFORE this new rule, people would file their waiver in their home country and wait for a decision.  Decisions could take months or even years, and the applicant would be required to wait outside the country for that entire time. 

This new rule, allows certain individuals to file their waivers HERE in the US and wait for the decision HERE.  That way, before they go to attend their visa interview in their home country, their waiver will have already been approved (hopefully) and instead of waiting months/years for a decision, they are merely out of the country for the amount of time it takes to obtain their visa -- usually a matter of weeks. 

In order to be eligible for the waiver under the new rule the applicant must:
(1) be an IMMEDIATE RELATIVE of a US Citizen (this means Spouse, Parent or Child - sorry, siblings don't count)
(2) be the beneficiary of an approve immediate relative petition (Form I-130 filed by one of the above listed relatives
(3) be 17years of age or older
(4) be present in the US at the time of filing the application for a provisional waiver and for biometrics (fingerprints) their local application support center
(5) have a case pending with the Department of State based on the approved I-130 petition and have paid the immigrant visa processing fee
(6) show extreme hardship to US citizen spouse or parent

PLEASE NOTE #6 - this is where it gets a little tricky: while your US Citizen over 21 CHILD can petition for you, the extreme hardship cannot be BASED on them.  So basically, you have to be married to a US citizen or you have to have a US citizen parent that you can base the hardship on.  This part is complicated, I know, so make sure you seek competent counsel before filing. 

The new rule will take effect on March 4, 2013.  It will definitely benefit so many people who had not yet filed because they did not want to take the risk of being stuck outside the US for an extended period of time.  That being said, it has very SPECIFIC eligibility requirements and you should seek legal counsel to determine your own eligibility.