Major changes are pending to the method in which waivers of inadmissibility based on extreme hardship to a U.S. citizen are processed (I-601 applications under INA §212(a)(9)(B)), announced January 6, 2012 by the Department of Homeland Security.  If you have been unlawfully present in the United States for a period greater than six months, and are thus subject to the three or ten-year bar to admission if you leave the country, and you have a spouse or child that is a U.S. citizen, this directly impacts you.

The new rule significantly changes the government’s method of processing and approving I-601 waiver applications, allowing the Department of Homeland Security in the United States to accept and issue provisional approval of I-601 waivers on grounds of unlawful presence while the applicant remains in the United States.  Upon provisional approval by DHS, the applicant could then apply for the immigrant visa at a U.S. consulate abroad without an eternal wait for the waiver.

To be sure, the ‘provisional’ qualifier likely adds an extra layer of review at the U.S. consulate to ensure all immigrant visa qualifications are met (including, importantly, the primary requirement that the U.S. citizen relative would suffer ‘extreme hardship’ due to separation), but the difference in waiting time would likely be weeks compared to years.  Current practice is for the applicant for an I-601 waiver of inadmissibility, if otherwise qualified for permanent residence through a qualifying immediate family relationship, to leave the United States for often two years or more to wait for processing of the waiver by USCIS, and then further review and delay at the U.S. consulate in their home country.