Can the Waiver Rule Change Proposed by USCIS Help Your Family?

In 2012, U.S. Citizenship and Immigration Services (USCIS) announced a “Notice of Intent” to change the regulations so that it would be easier for foreigners who are spouses, parents and children of U.S. citizens to obtain lawful permanent residence, even if they entered this country without papers. Currently, these people must leave the United States to complete the immigration process at a U.S. Consulate in their home countries, often spending many months away from their families. Under the proposed rule, they would still have to complete the processing overseas but the process would be much faster.

It is important to remember that the rule is not effective right now – in fact, USCIS expects that it will not become effective before the end of 2012. If implemented, this new rule will streamline the process for thousands of people who entered the U.S. without papers and are married to U.S. citizens by allowing them to legalize their immigration status without lengthy separations from their families. But, don’t file anything at this time as it is only proposed. We describe the proposed rule below. If you believe it might help you and your family, please consult with an experienced immigration attorney now.

As a practical matter, people who have approved visas based on their family relationship to U.S. citizens or lawful permanent residents, but who entered the country without papers and stayed, must leave the United States to complete the immigration process at an American Consulate in their home countries. However, as soon as they leave, they immediately become inadmissible due to the fact that they lived in the United States unlawfully. The very act of leaving makes them inadmissible. People who leave the country after being present unlawfully for 180 days but less than one year are barred from returning for three years; those present for a year or more are barred for ten years. INA § 212(a)(9)(B)(i). They may apply for a waiver but only if they are able to show that their absence from the United States would cause extreme hardship to a spouse or son or daughter who is a United States citizen or lawful permanent resident. INA § 212(a)(9)(B)(v).

Thus, when such a person goes to an interview at the U.S. Consulate, a Consular Officer makes the determination that the person was in the United States unlawfully. At that point, the person can apply for a waiver using Form I-601. The application can only be filed after the Consular Officer makes the determination that the person was in the United States unlawfully. The bureaucratic process for adjudicating the waiver application is cumbersome and lengthy. If the waiver is approved and the person is otherwise eligible, he or she is issued an immigrant visa. If the waiver is denied, the person has the right to appeal the decision. If the denial is upheld, the person is not able to re-enter the United States for three or ten years, depending on how long the person was in the country without papers. In any case, the person has to stay in the home country for a long time, separated from family in the United States.

The proposed rule would allow some future immigrants to file a waiver application and have USCIS adjudicate it before the person travels to his or her home country for an interview at the U.S. Consulate. If the person is found eligible, USCIS would grant a provisional waiver. The person would then leave the United States and go to an interview at the U.S. Consulate. When the Consular Officer finds that the person is inadmissibility based on unlawful presence in the United States, the officer would immediately apply the provisional waiver. Provided the person is otherwise eligible, a visa would be immediately granted and the immigrant would be able to return to the United States without having to stay away from family for a long time.

As the proposed rule is currently written, it will not help everyone. It will only be available to “immediate relatives” which the immigration laws generally define as spouses, parents and children (people unmarried and under 21 years old) of U.S. citizens. It would not be available to relatives of lawful permanent residents. Also, it would only be available to people whose only ground of inadmissibility is unlawful presence. People subject to any other ground, including public charge and criminal, would not be able to apply for a provisional waiver and would continue to have all of their waivers determined at U.S. Consulates. Lastly, the person would have to show extreme hardship of a U.S. citizen, not a lawful permanent resident.

Categories: Immigration News