DHS announced on January 6, 2012, that they will issue new regulations for processing of unlawful presence waivers of the 3 and 10 year bar to re-entry for certain immediate relatives of US citizens who wish to file immigrant visa applications (green card applications) abroad.
The new procedure will allow certain relatives of US citizens seeking an unlawful presence waiver to file and receive a decision regarding a provisional unlawful presence waiver without first leaving the US.
The current unlawful presence waiver procedure can take many months or even years to complete and can therefore separate families for long periods of time. It can also expose waiver seekers to dangerous home country conditions. For these reasons, the current procedure often discourages individuals who may qualify for an unlawful presence waiver from seeking it for fear of a long wait outside the US, or a fear of being unable to return to the US at all.
To receive a provisional unlawful presence waiver, an applicant must demonstrate that a lengthy bar from the US would cause a US citizen spouse or parent “extreme hardship.” Those who are approved for provisional unlawful presence waiver while in the US must, following approval, leave the US to process an immigrant visa (green card) at a US consulate abroad.
DHS’s January 6, 2012, announcement has not yet changed the current unlawful presence waiver procedure.
Since the new regulations have not been implemented, those who need an unlawful presence waiver should not file a request for a provisional waiver until the final regulations on this subject have been implemented and have become effective. Applications for provisional waivers filed before that time will be rejected.
Once the new procedure on unlawful presence waivers is effective, according to the current DHS notice, those with pending applications for unlawful presence waivers will not qualify under the new procedure. Those who have an unlawful presence application in process, or those considering filing an unlawful presence waiver application some time in the future should consult a lawyer before attempting to file a waiver application and before leaving the US to ensure they are aware of the best possible option available to them at any given time.
Currently, individuals seeking an unlawful presence waiver to qualify for legal permanent residence (green card) must leave the US and go to a US consulate in their home country for an interview, and then they must wait outside the US for their immigrant visas to be processed. However, under current law, leaving the US triggers a 3- or 10-year bar to re-entry for many applicants, i.e., specifically, the 3 or 10 year bar is triggered upon departure for those who have been unlawfully present in the US for more than 180 days.
Persons subject to the 3 or 10 year re-entry bar may apply for an unlawful presence waiver so that they do not have to face years of separation from their family. To qualify, they must demonstrate that a US citizen or permanent resident spouse or parent would experience “extreme hardship” if the waiver is not granted. However, under the current rules, individuals can apply for the waiver only when they leave the US and are present in the home country, and only after they have an initial interview at the US Consulate in their home country. A decision regarding an unlawful presence waiver can often take many months or even years, causing those seeking waivers to be separated from their families in the US. They may also face dangerous situations in the home country until a waiver is granted, an immigrant visa is approved and they are allowed to re-enter the US.
US immigration law allows US citizens and lawful permanent residents to apply for green cards for their foreign-born spouses and children. However, lengthy delays and other risks in the current waiver procedure discourage many family members from the legal immigration process. In fact, in addition to being separated from their families, those seeking unlawful presence waivers have been assaulted and even killed while waiting for waiver review.
The new procedure will allow certain immediate relatives of US citizens to apply for unlawful presence waivers while the waiver beneficiary remains in the US. If the waiver seeker is found eligible, USCIS will grant them a provisional unlawful presence waiver. Then that person must leave the US to apply for an immigrant visa (green card) at a US consulate abroad. During the immigrant visa interview, a consular officer will make a finding of inadmissibility based on unlawful presence and will then apply the provisional unlawful presence waiver. However, if the Consulate finds other grounds of inadmissibility, the individual must then submit another waiver application for that additional ground of inadmissibility (assuming they are eligible for a waiver of inadmissibility), while they are abroad. In many cases, a provisional unlawful presence waiver will reduce the wait period abroad as well as separation from the waiver seeker’s family by several months or years.
Under the new procedure, individuals seeking an unlawful presence waiver must still meet the extreme hardship standard to obtain a waiver.
The new regulation will change the unlawful presence waiver application process only for immediate relatives who can demonstrate that a US citizen spouse or parent would suffer extreme hardship if the bar to re-entry is not waived.
The proposed new unlawful presence waiver process will not apply to family members of lawful permanent resident petitioners, i.e., family members of green card holders. It will also not include immediate relatives if their qualifying relative for the hardship waiver is not a US citizen spouse or parent. Such persons must continue to apply under the existing procedure, which requires them to first leave the US and apply for an unlawful presence waiver abroad.
In addition, the new unlawful presence waiver procedure will apply only to those subject to the 3 or 10-year bar to re-entry due to unlawful presence in the US. Those subject to other grounds of inadmissibility will not be affected by the new process; they must still leave the US to apply for a waiver.
The DHS notice issued on January 6, 2012, only announces DHS’s intent to issue a proposed regulation at a future date. The next step in the rulemaking process will be for DHS to issue a Notice of Proposed Rulemaking including a proposed regulation governing the waiver process. This Notice will invite public comment on the new unlawful presence waiver procedure. The new unlawful presence waiver process will not be implemented until a final rule is issued.