Stateside Waiver Process for “Unlawful Presence”

5 Mar

In early January, DHS announced its intent to propose a change that would allow spouses and children of U.S. citizens who are in the U.S. but need a waiver of “unlawful presence” in order to get a green card to apply for that waiver while remaining in the United States. What does this mean and who is affected?

Background: Under current immigration law, U.S. citizens can apply for green cards for their immediate relatives even if their relatives entered the United States without inspection or are otherwise out of status. However, in order for these individuals to receive their green cards, most applicants must travel to a U.S. consulate in their home country to be interviewed and wait for the visa to be processed. They cannot adjust their status to a lawful permanent resident (LPR) in the United States. Moreover, often those relatives have accrued a certain period of “unlawful presence” in the United States, and once they leave, they are barred from returning to the United States for as long as 3 or 10 years. Under the current process, these individuals must first have an initial interview at their home consulate, and only then can they apply for the required waiver at the home consulate. The rules also require that they show that their U.S. citizen spouse or parent would face “extrem e hardship” as a result of the separation. (Extreme hardship to a U.S. child is insufficient.) All of this takes time, and as a result, waiver decisions often takes weeks, months, or even years to be completed.

DHS’s proposal would permit, for the first time, eligible spouses and children of U.S. citizens to apply for a provisional waiver before leaving the United States even though they would still need to show that a lengthy bar from the United States would cause their U.S. citizen spouse or parent “extreme hardship.” If approved, they will have to depart the U.S. to undergo visa processing and an interview at a U.S. consulate abroad. Because this new streamlined process is limited to those individuals who are inadmissible based solely on having accrued a period of unlawful presence, if other grounds of inadmissibility are found, the individual would need to submit another waiver application while abroad.

The new process is limited, however, and would not apply to family members of lawful permanent resident (LPR) petitioners. Furthermore, individuals would still need to meet the extreme-hardship standard to obtain a provisional waiver, because USCIS does not intend to modify the standards.

While the proposed change is narrowly construed, the provisional waiver procedure as outlined by DHS is nevertheless a step in the right direction for those eligible. 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, will provide a more predictable process, and will encourage those eligible to begin the process to regularize their status. It is, in fact, this quirk in the immigration laws that has contributed to the large number of undocumented foreign nationals in the United States.

It is unclear when the new process will take effect but presumably by the end of the year. DHS first must issue a notice of proposed rule-making, invite public comment, and then issue a final rule.

Alice M. Yardum-Hunter

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