IN January of this year, we first wrote about this exciting topic, which was based on the January 6, 2012 announcement by US Citizenship and Immigration Services (USCIS). In the announcement, USCIS indicated its intent to amend the regulations pertaining to waivers for certain immediate relatives of United States citizens who are applying for visas outside the United States. The new procedure would be aimed at reducing the amount of time US citizens and their spouses and children are apart when those spouses and children are seeking to legalize their immigration status abroad. In particular, the new procedure would permit individuals to apply for provisional waivers based on prior unlawful presence in the United States, without the need of leaving the United States first.
At present, relatives of US citizens who have accumulated a period of unlawful presence in the United States and have to travel abroad as part of their immigration process face a mandatory bar on their return, which can be as long as 3 or 10 years. To overcome the bar, they can, in some circumstances, apply for a waiver, which if granted, will excuse their prior unlawful presence. The waivers are discretionary in nature and are granted only if the qualifying US citizens prove to the satisfaction of the USCIS that they will suffer extreme hardship if they are separated from their spouses and children. Most importantly, individuals seeking admission to the United States are required to remain abroad while their waiver applications are pending. In some cases, this means being away from their US citizen loved ones for months, if not years, and being often subjected to difficult circumstances and danger in their native countries.
If the provisional unlawful presence waiver regulations become effective, they will mark a significant departure from the current way of handling these matters. Under the new regulations, immediate relatives of United States will have the opportunity to apply for the waivers of unlawful presence in the United States, without first leaving the country. If said waivers are approved, the applicants will still have to travel abroad to apply for their immigrant visas, but the time away from their families will be very short.
Under the proposed regulations, the following requirements will have to be met for individuals seeking the unlawful presence waiver:
Must be physically present in the United States;
Must be at least 17 years of age;
Must be the beneficiary of an approved immigrant visa petition filed by a US citizen;
Must be actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
Must not be subject to any other grounds of inadmissibility other than unlawful presence; and
Must demonstrate that the refusal of admission would result in extreme hardship to a US citizen spouse or parent.
The following individuals will not qualify for the proposed process if they:
Have applications already pending with USCIS for adjustment of status to lawful permanent resident;
Are subject to a final order of removal or reinstatement of a prior removal order;
Are or can be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
Already have been scheduled for an immigrant visa interview at a US Embassy or Consulate abroad.
Over ten months have passed since the January 6, 2012 announcement. While it is
expected that the provisional waiver regulations will become effective in the early part of 2013, USCIS has not yet released any relevant details or the date when the regulations may take effect.
As such, individuals who meet the above eligibility criteria should not file any waiver application with USCIS based on the proposed rule at this time. However, it is recommended that they seek professional legal advice. At Wilner & O’Reilly, we understand the complexities of the immigration laws and their consequences on families. We are experienced and will be glad to help. Do not hesitate to contact us.
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Richard M. Wilner is a principal in the firm of Wilner & O’Reilly, APLC. He is Board Certified as a Specialist in Immigration and Nationality Law by the State Bar of California’s Bureau of Legal Specialization. He is a former Commissioner for the State Bar’s Immigration and Nationality Law Advisory Commission. Mr. Wilner may be reached directly via email at [email protected] or by telephone at 714-919-8880
