Have you heard the news?  After much anticipation, the Obama administration has finalized a rule that may help you and your loved ones.

The new rule, called the "Provisional Waiver," will reduce the time that many U.S. citizens are separated from their immediate relatives who apply for green cards abroad.

Believe it or not, many undocumented foreign nationals who are married to U.S. citizens cannot apply for green cards in the United States.  These foreign nationals must apply for immigrant visas (i.e. green cards) at U.S. embassies outside the United States.  However, once they depart the United States, they could trigger a 3 or 10 year bar to admissibility if they were unlawfully present in the U.S.       

Historically, such foreign nationals could submit applications to waive the unlawful presence bars only after they departed the United States, and adjudication of the waiver could take over one year!  Sadly, while the waiver applications were pending, U.S. citizens were separated from their immediate relatives.     

The Provisional Waiver is designed to reduce the time such families are separated.   

Below are six things you should know about the Provisional Waiver.

#1 - The Provisional Waiver will significantly reduce the time families are separated

The Provisional Waiver permits qualifying foreign nationals to apply for unlawful presence waivers while remaining in the United States with their U.S. citizen family members.    

#2- The Provisional Waiver will help spouses and children under 21 years old of U.S. citizens

The Provisional Waiver will help spouses and children under 21 years old of U.S. citizens who can demonstrate that denial of their application for a green card will result in "extreme hardship" to their U.S. citizen spouse or parent.

U.S. Citizenship and Immigration Services ("USCIS") has stated that in the future it may expand eligibility for the Provisional Waiver to spouses and children of lawful permanent residents.

Moreover, the Provisional Waiver only applies to foreign nationals who are inadmissible for unlawful presence. The waiver does not apply to foreign nationals who are subject to criminal, fraud, or other grounds of inadmissibility.

#3 - Applicants will apply for a Provisional Waiver using new Form I-601A

The applicant for a Provisional Waiver must first be the beneficiary of an approved immediate relative I-130 visa petition. After approval of the I-130 petition, applicants can file Form I-601A, which USCIS has not yet published. USCIS has stated that in the coming weeks it will make more information available about the filing process.

#4 - If at first the case is denied, you can try again

USCIS has clarified that applicants whose provisional waivers are initially denied may attempt to file again with the appropriate filing fees.

#5 - Foreign nationals currently in removal proceedings may be eligible to apply for a Provisional Waiver

Foreign nationals in removal proceedings who meet the requirements for a Provisional Waiver may apply if their proceedings are administratively closed at the time of filing Form I-601A.

#6 - Waiver applications can take a long time to prepare

The rule goes into effect on March 4, 2013, and USCIS will not accept any applications before that date. However, as waiver applications can take several weeks or even months to prepare, many applicants may want to start the process immediately.

If you have any questions regarding this program, please feel free to contact us at 786-406-1744 or info@ratzanlaw.com.