On Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of intent in
the Federal Register outlining its plan to reduce the time that U.S.
citizens are separated from their spouses and children under certain
circumstances while those family members go through the process of
becoming legal immigrants to the United States. Currently, spouses and
sons and daughters of U.S. citizens who have accrued a certain period of
unlawful presence in the United States, and have to leave the country
as part of the legal immigration process, are barred from returning to
their families for as long as 3 or 10 years. They can receive a waiver
to allow them to return to their families by showing that their U.S.
citizen family member would face extreme hardship as a result of the
separation. This proposal would streamline the processing of these
individuals’ waiver applications based on unlawful presence; USCIS
proposes to process their waiver applications in the United States
before any American family faces separation. The process would only
apply to immigrants who are eligible for a visa.
Under the proposed process, the spouses and children of U.S. citizens
who are eligible for a visa to immigrate legally to the United States,
but who need a waiver of inadmissibility for unlawful presence in order
to obtain that visa expeditiously, would apply for a provisional waiver before
leaving the United States to have their immigrant visa application
processed at a U.S. embassy or consulate abroad (as they must pursuant
to law). The notice limits the streamlined process to those individuals
who are inadmissible based solely on having accrued a period of
unlawful presence and – pursuant to statutory requirements –
who can demonstrate extreme hardship to their U.S. citizen relative.
All individuals affected by this streamlined process would need to meet
all legal requirements for admission to the United States, including the
requirement that they process their visa application at a U.S.
With the change outlined in the notice, individuals who currently
qualify for a waiver of inadmissibility under the existing eligibility
standards, and who can demonstrate that separation from their U.S.
citizen spouse or parent would cause extreme hardship to that relative,
would be allowed to apply for a waiver while still in the U.S.
By allowing these individuals to apply for waivers in the U.S. and
making a provisional determination of waiver eligibility before the
individuals must depart the country for visa processing, USCIS would
provide a more predictable and transparent process and improved
processing times, minimizing the separation of U.S. citizens from their
families. The change would also streamline the process for both USCIS
and the Department of State (DOS) when handling requests for these
waivers. As a result, this change would encourage individuals who may
be eligible for a waiver of inadmissibility to seek lawful readmission
to the United States by limiting the amount of time they would need to
spend away from their U.S. citizen spouse or parent.
Following publication of this notice, USCIS will undertake further
analysis and collaborate with the Department of State to develop the
streamlined process in greater detail. USCIS plans to publish a notice
of proposed rulemaking in the coming months that will provide additional
details and allow the opportunity for public comment. A final rule
will then be published to implement the streamlined process. The rule
will not modify the underlying standard for assessing whether denial of
the waiver would result in extreme hardship to the U.S. citizen spouse
or parent of such individuals. It would modify only the process by
which these applications may be filed and accepted by USCIS for
Q. Why is USCIS proposing the change?
A. This proposed change will reduce the time
that U.S. 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 U.S. and
apply for a waiver at a U.S. 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 U.S. The proposed change would reduce the amount
of time that U.S. 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
Q. How is the proposed process different from the current process?
A.Currently, U.S. 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 U.S., 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 U.S. 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 U.S. and receive a provisional decision on that
waiver before departing the U.S. for consular processing of their
immigrant visa applications. Currently, applicants can only file for a
waiver after having been determined inadmissible by the U.S. 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.
Q. When will this streamlined process be implemented?
A. 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.
Q. Who would be eligible for a provisional waiver?
A.Spouses and children of a U.S. 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.
Q. Why is this proposed streamlined process limited to the spouses and children of U.S. citizens?
A.The policy objective of this proposed
process change is to alleviate extreme hardship suffered by U.S.
citizens. USCIS has thus identified immediate relatives of U.S.
citizens as the class of aliens to consider for this procedural change.
In addition, their immigrant visas, which are not subject to annual
limitations, are always immediately available. The focus on U.S.
citizens and their immediate relatives is consistent with Congress’
prioritization in the immigration laws of family unification. This
proposal meets the goals of both improving efficiency and reducing the
length of time that American families are unnecessarily separated.
Q. How would the proposed process affect existing standards related to unlawful presence and the extreme hardship standard?
A.It would not. The proposed process retains
all of the legal standards and policies related to unlawful presence
determinations and establishing extreme hardship. It would simply
provide for the processing of these waivers in the United States instead
Q. Will individuals who recieve the waiver be able to adjust their status without leaving the United States?
A. No. The visa process itself is not
changing. Individuals who receive a provisional wavier would still be
required to depart the United States to apply for their immigrant visa.
Q. Is everyone who has accrued more than 180 days of unlawful
presence subject to a three- or 10-year bar from entering the U.S.?
A.Yes; however, some aliens do not accrue
unlawful presence if they fall into certain categories. For example,
children under the age of 18 do not accrue unlawful presence for any
period of time before their 18th birthday. Similarly, under current
law, certain victims of crime and aliens with pending asylum
applications do not accrue unlawful presence while their application is
Q. If an individual already filed a Form I-601 from outside the U.S., would the proposed process affect him or her?
A.No. It would only affect individuals who
have not yet filed a Form I-601 and who will file a waiver request after
a final rule is published.
Q. Would USCIS collect biometrics as part of the streamlined process?
A.Yes. It is contemplated that applicants in
the United States would be scheduled for biometrics collection at a
USCIS Application Support Center.
Q. Why does USCIS refer to the waiver as “provisional?”
A.In the proposed process, USCIS would grant
the provisional waiver before the applicant departs the U.S. for
consular processing of their immigrant visa applications. The
provisional waiver, however, would not take effect until the individual
departs from the United States and triggers the covered ground of
inadmissibility. Moreover, the provisional waiver covers only the
unlawful presence grounds of inadmissibility. If the consular officer
finds during the immigrant visa interview that the individual is subject
to another ground of inadmissibility, the individual would need to file
another waiver application with USCIS.
Q. What would happen at the consular interview?
A.If DOS found the individual otherwise
eligible for the immigrant visa, the consular officer would then issue
the visa, allowing the individual to immigrate to the U.S.
Q. What would happen to individuals who are not eligible to file a waiver under the proposed process?
A.They would continue to follow current
agency processes for filing waiver requests after a determination of
inadmissibility is made by a U.S. consular officer overseas.
Q. What would happen to individuals who are denied waivers under the proposed process?
A.They would be subject to USCIS guidance and
law enforcement priorities for issuing Notices to Appear (NTA). For
example, convicted criminals, public safety threats, and those suspected
of fraud will receive NTAs.