USCIS Announces Notice of Intent for Provisional Unlawful Presence Waivers
Today, the Administration announced a proposed rule that is intended to reduce the time that U.S. citizens are separated from their immediate relatives during the immigrant visa (green card) application process. The announcement will be published in the Federal Register on January 9, 2012 and will not require approval from Congress. The notice states that the new waiver process will not be implemented until a final rule is issued and the change becomes effective.
Immigration law provides that U.S. citizens and lawful permanent residents can apply for "green cards" for their foreign-born spouses and children. But the lengthy delays and risks in the current waiver procedure discourage many family members from completing the process of legal immigration. Family members have been assaulted or killed while waiting for waivers to be reviewed.
Under the current system, the husband or wife of a US citizen is barred from applying for a green card in the US if they originally entered without proper
inspection by an immigration officer. To obtain lawful status the immigrant must leave the US and apply for a visa at a US embassy in their home country.
However, their departure triggers a bar from returning to the United States for up to 10 years. The State Department makes the formal finding of inadmissibility during the course of an immigrant visa interview at a U.S. consulate.
When the U.S. Consulate finds that the U.S. relative is inadmissible, the immigrant is directed to submit an "application for waiver of the grounds of inadmissibility to the USCIS" or "unlawful presence waiver". The USCIS processing of the waiver application can span a matter of months and even years, and during this time, the immigrant relative remains abroad and the family is separated.
An unlawful waiver application is approved if it shows that the applicant's US citizen or legal resident spouse will suffer extreme hardship in their absence.
Proposed Rule: the proposed rule change is significant because it will allow foreign spouses and children of U.S. citizens to apply for a provisional waiver while in the U.S.–something not permitted under the current rule. If the waiver is granted, the foreign national will then leave the U.S., apply for his or her immigrant visa abroad, and return to his or her loved ones. . The provisional waiver, however, would not become effective unless and until the alien departs from the United States.
This revised process eliminates the time-consuming interchange between the Department of State and USCIS, would significantly reduce the amount of time that American families will be separated from their immediate relatives.
Who will be eligible to apply for the provisional waiver?
For purposes of this provisional waiver program, DHS intends to limit who may participate in this program to immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent. The term "immediate relative" includes:
- Spouse, parent or child (unmarried and under 21 years old) of a U.S. citizen,
- In the case of a parent, the U.S. citizen son or daughter petitioning for an immigrant visa must be at least 21 years old,
- Certain self-petitioners (i.e., widows/widowers of U.S. citizen and their minor unmarried children) may also be considered immediate relatives.
The qualifying relative must be a U.S. citizen spouse or parent but does not need to be the U.S. citizen petitioner.
What ground of inadmissibility will be considered for provisional waiver ?
The new procedure will apply only to individuals who are subject to the 3- and 10-year bars for unlawful presence. Individuals who are subject to other grounds of inadmissibility are not affected under the new process and will still have to depart the U.S. before applying for any waiver. Therefore, applicants who require waivers for one or more additional grounds of inadmissibility, such as fraud or willful misrepresentation (section 212(i) waiver) or certain criminal offenses (section 212(h) waiver), in conjunction with their immigrant visa applications must continue to file a Form I-601 while outside of the United States in accordance with the existing process.
Note that, the USCIS does not intend to modify the standard for assessing eligibility for the extreme hardship waivers, including whether the denial of the waiver would result in extreme hardship to a U.S. citizen spouse or parent ("qualifying relative"). Also, even if they obtain a provisional waiver, eligible applicants required to obtain a visa through consular processing would still be required to depart from the United States to apply for an immigrant visa.
