USCIS Issues Final Guidelines on Visa Waiver Processing for Unlawful Presence in the US

The Department of Homeland Security has issued the following final regulations regarding new processing procedures for waivers: The beginning of the Press Release reads as follows:

Beginning March 4, 2013, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

The full release can be accessed at the following link: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=bc41875decf56310VgnVCM100000082ca60aRCRD&vgnextchannel=bc41875decf56310VgnVCM100000082ca60aRCRD

In order to understand what this new regulation is about and its potential impact on certain immigrants, one has to first understand how the current immigration system works. Fundamentally, there is huge difference between illegal immigrants who entered legally and overstayed, versus those who entered illegally and overstayed. One of the key ways that this difference manifests itself is that for those immigrants who entered legally (usually as tourist, business visitors or students) is that they can eventually obtain a green-card or legal residence if they have an immediate relative sponsor them. For these purposes an immediate relative is either: 1) A US Citizen Spouse; 2) A US Citizen son or daughter over the age of 21; 3) An unmarried son or daughter under the age of 21 of a US Citizen. In other words, If one enters the country legally and overstays for 30 years, they can obtain a green-card almost immediately if they get petitioned by an immediate relative (like a husband or wife).

The situation is much different, however, for someone who has entered the country illegally no matter how long ago. In those situations that individual is required to go back to his home country and get interviewed at the American Embassy before being approved for a green-card even if he or she are married to a US Citizen. The problem is that the law says that if you lived in the United States unlawfully, then you are inadmissible (not eligible to re-enter the US for either 3 or 10 years depending on how long you have overstayed). So the only way to avoid having to stay outside the US for the 3 or 10 years is to file for waiver based on hardship. Up until this new regulation, a person would have needed to remain outside while files and waits for the decision on the I-601 waiver request. The new regulations, however, allows a person to file the waiver (I-601A) before they leave and wait in the US for it to be processed, so long as they are being petitioned by an immediate relative. In other words, the person would know beforehand whether they are going to have to wait outside the US (for 3 or 10 years) before ever having to leave.

Unfortunately, many unscrupulous lawyers have begun to advertise this new regulation as a form of “immigration amnesty” for anyone who is here illegal and has an immediate relative. The problem, however, is that while any person who meets the criteria can technically apply, it does not guarantee that the actual waiver would be approved. As a matter of fact, in order to be approved, the applicant would need to demonstrate that being outside of the US would cause them and their US immediate relatives “extreme hardship” not just difficulty of separation etc., the difficulty need to be extreme and more than the usual and expected consequence of family separation. For example, saying that I will miss my husband or that I will have a hard time supporting my family without him is almost always not sufficient to approve the waiver.

Instead, what needs to be demonstrated are situations beyond the ordinary, like extremely difficult or unsafe country conditions where the applicant would wait, a medical condition with a family member that requires the immigrant’s help or assistance or other factors or situations where separation would cause a severe hardship. Every situation is different, and one cannot make a general statement about who qualifies and who does not, until a complete evaluation of an individual’s circumstances is performed. The bigger point, however, is that people should not be led to believe that the process is simple or automatic, it is not. It is extremely critical to consult several experienced attorneys on this subject before committing on any course of action.