AS WE begin this New Year, we hope that 2012 will be good for all of you, especially in the area of immigration law. Traditionally, immigration law has seen positive changes during the years of the presidential elections. We remain optimistic that 2012 will not be different.

One encouraging indicator that good immigration developments are to come is the most recent proposal regarding the process of unlawful presence waivers. On January 6, 2012, the US Citizenship and Immigration Services (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 is 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 will 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. If approved, the individuals will then travel back to their native countries to apply for immigration visas, armed with already approved waivers.

This is a significant proposal. Currently, spouses and children of United States citizens who have resided in the United States unlawfully for a period of time and are required to leave to apply for an immigrant visa at the US consulate in their native countries as part of the administrative immigration process, face what is commonly referred to as a 3 or 10-year bar on admission. In another words, because they have accrued unlawful presence in America, they are subject to certain prohibitions on readmission unless they are granted waivers, meant to forgive the 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.

Under the current scheme, individuals seeking waivers must apply for them abroad, after having been interviewed for their immigration visas at the appropriate consulate. In practice, the waiver adjudications are subject to many bureaucratic delays and consulate staffing problems. The waiver determinations frequently lag, sometimes for months and even years. During that time, US citizens live apart from their spouses and children who often are subjected to difficult circumstances and danger in their native countries.

If the new proposed changes become law, the immediate relatives of United States will be permitted to apply for the waivers of unlawful presence without first departing the country, which will of course make a huge difference to their US citizen relatives. If the individuals are found eligible and worthy of favorable discretion, they will receive provisional waiver approvals. They will then have to go abroad to process for their immigrant visas, but the time away from their families will be very short.

It is important to keep in mind that the proposed changes are only meant to cover waivers for unlawful presence. If individuals are found inadmissible for other reasons, they will have to apply for additional waivers while waiting abroad. Moreover, the new process will only be beneficial to the relatives of US citizens. Family members of lawful permanent residents are not included in the purview of the proposed law.

Finally, there is no way to tell when the proposed rules will become effective. It is expected that the USCIS will issue a Notice of Proposed Rulemaking describing the proposed waiver regulation and the public will be allowed to comment. The final rule will be published sometime thereafter.

As such, interested individuals should not be filing any waiver application with the USCIS based on the proposed rule at this time. Until the proposed rule become law, the existing waiver scheme remains effective. However, it is very advisable for individuals who believe that they will be positively impacted by the new law to 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 at one of our 4 office locations.

* * *

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