DON’T GET SCAMMED! What You Need to Know About the January 6, 2012 DHS Announcement, Changes to Processing for Unlawful Presence Waivers

AILA, Jan. 2012: "What was announced on January 6?

DHS announced on January 6 that it will be issuing new regulations for how unlawful presence waivers will be processed for certain immediate relatives of U.S. citizens who are filing immigrant visa applications abroad. Specifically, the new procedure will allow these individuals to file for a provisional unlawful presence waiver in the U.S. If approved, they will still have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. To receive a provisional waiver, they will still need to show that a lengthy bar from the U.S. would cause their U.S. citizen spouse or parent “extreme hardship.”

What is the current process and why is the change necessary?

Currently, many relatives of U.S. citizens and lawful permanent residents face unnecessary and dangerous bureaucratic hurdles when they apply for lawful permanent residence (“green card”). In order to be granted permanent residence, these applicants are required to travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. But departure from the U.S. triggers a 3- or 10-year bar to re-entry for many applicants—specifically those who have been unlawfully present in the U.S. for more than 180 days. Individuals subject to this re-entry bar may apply for a waiver so that they do not have to face years of separation from their family. To qualify, they must demonstrate that certain qualifying relatives would experience “extreme hardship” if the waiver is not granted. But under the current process, individuals can only apply for the waiver in their home country, after having had an initial interview at the consulate. The decision on the waiver often takes weeks, months or even years to be completed.

What will the new process consist of?

The new procedure will allow certain immediate relatives of U.S. citizens to apply for waivers of the unlawful presence bars while remaining in the U.S. If the individual is found eligible, USCIS will grant a provisional waiver. He or she will still have to depart the U.S. and visit a U.S. consulate abroad to apply for an immigrant visa. During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. If other grounds of inadmissibility are found, the individual would need to submit another waiver application, if eligible, while abroad. In many cases, the provisional waiver will reduce the wait period abroad and the separation from the applicant’s family by several months or years. Individuals will still need to meet the extreme hardship standard established in existing law to obtain a waiver. The January 6 notice states that USCIS does not intend to modify the standard.

Who will be able to use the new process?

As announced in the January 6 notice, the new regulation will change the application process only for immediate relatives whose U.S. citizen spouse or parent would suffer extreme hardship if the bar is not waived.

Who is left out of the new process?

According to the January 6 notice, the new process will not apply to family members of lawful permanent resident petitioners. It will also not include immediate relatives if their qualifying relative for the hardship waiver is not a U.S. citizen spouse or parent. 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.

When will the new regulations and process be implemented?

The new provisional waiver procedure has not yet taken effect. Do not believe anyone who says that they can get you a waiver right now.

What should current and prospective waiver applicants do at this time?

The January 6 announcement has not changed anything in the current waiver procedure. The notice discourages the filing of applications for provisional waivers and states that such requests will be rejected. The new procedure will not take effect until a final regulation is issued. Individuals with a waiver application in process, or contemplating an application, may wish to consult with an attorney before filing, paying a fee or leaving the country, in order to explore the best alternative at this time." - AILA, Jan. 2012.