QUESTION: I heard that there is some new law about the Waiver of the 3/10 year bar. What is it?
Answer: It is not actually law yet, but it is great news. Instead of waiting outside the United States for years waiting for the 3/10 year bar to be adjudicated, once the regulations are final, you can submit it here in the United States while waiting a decision before you ever leave.
Question: Why is USCIS proposing the change?
Answer: This proposed change will reduce the time that US citizens are separated from their spouses and children under certain circumstances while those family members are going through the process of obtaining visas to become legal immigrants to the United States. Under current policy, individuals who wish to apply for a waiver of inadmissibility for unlawful presence must leave the US and apply for a waiver at a US consular office outside the United States. This process can be lengthy and discourages individuals who may be eligible for this waiver from applying, which delays their ability to lawfully reenter the US The proposed change would reduce the amount of time that US citizens would be separated from their spouses and children while the process to obtain a visa to immigrate takes place. This reflects the Administration’s strong commitment to efficiency in the administration of immigration law and facilitation of legal immigration.
Question: How is the proposed process different from the current process?
Answer: Currently, US citizens who petition for their spouses and children to become legal immigrants to the United States must petition for a visa, and in some circumstances, if the spouse or child has accrued more than 180 days of unlawful presence in the US, that spouse or child must also petition for a waiver of a ground of inadmissibility in order to have his or her visa application processed. The proposed process does not change the requirements for obtaining a visa or the standards for obtaining a waiver. Nor does it change the requirement that the spouse or child of a US citizen ultimately depart the United States to have his or her visa application processed at a consulate abroad. The only change contemplated by this proposal is that the spouse or child would be able to apply for a waiver with USCIS in the US and receive a provisional decision on that waiver before departing the US for consular processing of their immigrant visa applications. Currently, applicants can only file for a waiver after having been determined inadmissible by the US consular officer and must wait abroad for a decision, which significantly adds to the processing time for their case. The proposal limits the extent to which the process forces the lengthy separation of families.
Question: When will this process be implemented?
Answer: The process will be implemented only after USCIS issues a final rule. In the coming months, USCIS plans to publish a notice of proposed rulemaking and will consider the comments received as part of that process before publishing a final rule. The current process will remain in place until a final rule goes into effect. No one should file an application with USCIS based on this proposed change in process. Any applications filed with USCIS based on this notice will be rejected and the application package returned to the applicant, including any fees until the final rule is issued and the change becomes effective
Question: Who would be eligible for a provisional waiver?
Answer: Spouses and children of a US citizen (1) who are seeking lawful permanent residence through an immigrant visa, (2) who are found inadmissible based on unlawful presence in the United States for more than 180 days, and (3) who meet the existing extreme hardship standard. Children under the age of 18 do not accrue unlawful presence and, as a result, are not required to obtain a waiver.
It is time to stop hiding and to get these petitions done.
* * *
Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
