AFTER the announcement of Department of Homeland Security Secretary Janet Nepolitano on a new ruling (which will give immediate family members of US citizens unlawfully staying in the United States provisional waivers so they can continue to live in the US while awaiting their green card), we have seen spikes of advertisements in both traditional and online media that promise to expedite green cards for TnTs.
These ads capitalize on the impression that the new ruling is a “backdoor amnesty,” and that it covers ALL undocumented spouse, children, or parents of American citizens.
Before you become victims of some unscrupulous vultures, who will jump at any opportunity to capitalize on peoples’ desperation to avoid deportation, please read on.
I interviewed Balitang America’s “Pinoy Panawagan” segment legal counsel Atty. Lou Tancinco on this, and she explained the fine details of this new ruling.
First of all, Atty. Tancinco clarified that this ruling is NOT amnesty, nor does it enable the qualified TnTs to cut the line and be ahead of other immigration applicants who followed the rules. They will not even be able get any work permit or advance parole may be applied for, while the provisional waiver is pending.
Looking at the bigger perspective, Atty. Tancinco said that even before this ruling (which is set to take effect on March 4) there have already been “traditional waivers” available to some immediate family members of US citizens and even lawful permanent residents, who may have some issues in the processing of their petition for immigration-based family relations.
How then is the new ruling different from the traditional waiver? Who are really covered and what are the limits to the benefits they will presumably enjoy as a result of this new ruling?
Atty. Tancinco sent me this scenario via email to explain the difference so our kababayans may understand the fine prints of this new ruling: “JOSEPINE entered the United States through the US-Canada border. She did not have a valid US visa and took her chances of hitching a ride with family friends to cross the border from Vancouver. Upon her arrival in 2005, she engaged in unauthorized employment. She met her US citizen spouse at work and a petition was filed on her behalf.
The petition was approved but Josephine was told to leave the country to get her visa at the US Embassy in Manila. Josephine refused to leave because she was not sure whether she could return to the United States after departing. She has two US citizen minor children and one of them has a disability. Will Josephine benefit from the new provisional waiver? How different is this provisional waiver from the traditional waiver?
To distinguish the traditional waiver from the provisional waiver, the new rules now allows the applicant who is undergoing consular processing to file the waiver within the United States even prior to departure to get the immigrant visa in a US Embassy abroad. This helps foster family unity while the waiver process is pending.
Generally, an applicant for immigrant visa may obtain the visa either through (1) adjustment of status or (2) consular processing at the US Embassy abroad. Those who are in the United States and entered with inspection or were admitted, even if they are currently out of status, MAY apply for their visas within the United States through the adjustment of status process.
On the other hand, those who are residing in the United States but were NOT admitted, or fall under the category of those who are NOT eligible to adjust, must obtain their visas at a US Embassy abroad, through consular processing.
Those who have no immigration violations or have not overstayed in the United States will not encounter the usual delay in obtaining the visa abroad if the immigrant visa is available. The problem arises for those who have incurred “unlawful presence” of more than 6-months and are required to do consular processing.
For the latter, who are required to depart to get their visas abroad, the process is usually terrifying because of the uncertainty of their ability to return, as well as the long period of separation from family for many months, if not years. This fear is alleviated by the ability of these individuals to file for a stateside or provisional waiver. This is DIFFERENT from the traditional waiver process.
In the traditional waiver processing application, the individual may either be the spouse, parent, child (adult or minor) of a US citizen, or a lawful permanent resident. A petition for relative is filed and the visa is available except that there are reasons for the denial of the visa. These reasons are referred to as “grounds for inadmissibility.”
Examples of such grounds (1) fraud and misrepresentation; (2) certain criminal offenses; (3) health-related grounds; (4) smugglers; (5) previous removal order and (6) 3-10 year bar. All these reasons for denial may be overcome by filing the I-601.
If this waiver is granted, the immigrant visa will be issued. The traditional waiver is filed within the United States for adjustment of status. For those consular processing, the individual applicant may only file the waiver after the interview with the consular officer when he is required to file the waiver before the immigrant visa is issued. With the provisional waiver, this waiver may now be filed within the United States prior to departing and applying for the visa abroad.
Unlike the traditional waiver, the new provisional waiver only applies to immediate relatives of US citizens. Immediate relatives of lawful permanent residents are NOT covered by this new rule. In addition, it is important to note that the NOT ALL the grounds of inadmissibility will be included in the provisional waiver. Only the “unlawful presence” or the 3-10 year bars will be waived. Also, there is no appeal to the denial of the provisional waiver application unlike the traditional waiver.
The US Citizenship and Immigration Services also made it clear in the published rules that no employment authorization or advance parole may be applied for while the provisional waiver is pending. The standards set for determining extreme hardship to US citizen spouse or parents will be the same for both provisional and traditional waivers.”
GOING BACK to the case illustrated earlier, Atty. Tancinco said “since Josephine is not eligible to adjust, she may take advantage of the provisional waiver when the rules take effect on March 4, 2013. If the waiver is approved and that no other grounds for inadmissibility exists, her departure to the US Embassy in Manila to get her visa will assure her return within a reasonable time.”
Atty. Lou Tancinco reminded us that while the final rules on Provisional/Stateside Waivers released last week might have excited thousands of family members waiting for an opportunity to legalize, we need to be cognizant of this ruling’s limited applicability.
Please be guided by this information. Huwag magpapaloko.
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Gel Santos Relos is the anchor of TFC’s “Balitang America.” Views and opinions expressed by the author in this column are are solely those of the author and not of Asian Journal and ABS-CBN-TFC. For comments, go to www.TheFil-AmPerspective.com, https://www.facebook.com/Gel.Santos.Relos
