People who enter the U.S.A. illegally or overstay the time that they are allowed to be in the USA by 180 days or more and who leave the country are barred from reentering the USA for 3 years if they did not overstay by more than 1 year or barred from reentering for 10 years, if they were illegally in the country for more than 1 year. The act of leaving the USA is what triggers the bar to reentering.

Example: Anna, a citizen of Mexico, who came to the USA illegally. She is now 25 and is married John, a U.S citizen. If John petitions for Anna for permanent residence, it will not be possible for her to adjust her status to permanent residence inside the USA, since she does not have legal status inside the USA. Anna will be obliged to leave the USA to be interviewed at a Consulate in Mexico. The moment she leaves the USA, she is barred from returning for 10 years, UNLESS John can prove that it would be an exceptional hardship for him to live in Mexico for 10 years or wait for Anna to join him in the USA after 10 years. This is known as a "waiver." (Please note that there are exceptions. Where someone entered the country with a visa, overstayed and marries a U.S citizen. In that case it is possible to adjust status to permanent residence in the USA. There are some other exceptions, so check before you leave the country)

The present procedure requires John to wait until Anna is called for her interview in Mexico before he can submit his request for an exceptional hardship waiver. The consulate will then submit the waiver application to the Immigration Service for consideration.

It can take months before a decision is made by the Immigration Service, but Anna is required to wait in Mexico during this time. This waiting time can present serious challenges. For example, if they have children and John is working, who will care for the children?

U.S. Citizenship and Immigration Services (USCIS) intend to change its current process for filing and adjudication of certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application. Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers,   prior to departing the United States for consular processing of their immigrant visa applications. An alien would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved.

This revised process, which eliminates the time-consuming interchange between the Department of State and USCIS, would significantly reduce the amount of time that American families will be separated from their immediate relatives. USCIS also believes that efficiencies can be gained through this revised process for both the U.S. Government and most applicants.

USCIS would grant a provisional waiver if the alien meets the eligibility requirements, including demonstrating that the applicant's qualifying U.S. citizen spouse or parent would suffer extreme hardship. The provisional waiver would be granted before the alien leaves the United States to attend his or her immigrant visa interview with a consular officer. The provisional waiver, however, would not become effective unless and until the alien departs from the United States. If the alien is otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of the visa so that the alien may proceed to immigrate to the United States for permanent residence.

The new process will reduce the movement of the case back and forth between the Department of State and USCIS, which significantly prolongs the overall process and increases the time that U.S. citizens are separated from their immediate family members.

USCIS will issue a proposed rulemaking that will explain the proposal in further detail and that will invite comment from all interested parties. Note: Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.