On January 2, 2013, the Department of Homeland Security announced the passage of the final rule to support family unity during the waiver process. What this means is that some family members (spouse, children and parents) of U.S. citizens will not be separated as long as they used to be in obtaining the "unlawful presence" waiver.
The "unlawful presence" waiver, most of the time, is required for individuals who cannot adjust their status in the United States and have to go outside of the United States to attempt to obtain a visa to immigrate back as permanent residents. The consequence of departing is that there are bars that someone who has lived in the United States illegally can obtain at the time of departure. The most common bar is the 10-year bar, which is for individuals who have lived in the United States illegally for more than one year and then depart the United States.
Prior to the passage of this new regulation, the only method to try to obtain the "unlawful presence" waiver was to apply for the waiver at the U.S. Consulate after departure. The person could not return to the United States until the waiver was adjudicated, which could take years.
The new regulation will allow people who will have the bars to apply or seek the waiver prior to departing the United States. Please note that individuals will still have to depart the United States for their visa interviews, but will not be separated as long as previously.
Additionally, in order for the waiver to be approved, the applicant has to show that his or her qualifying relative, either a lawful permanent resident or Unied States citizen spouse or parent, will suffer extreme hardship if the waiver is denied.
The waiver process will take effect on March 4, 2013. More information regarding the filing process will be available in the next couple of months.