Proposal to Facilitate Waiver Application Process

The U.S. Citizenship and Immigration Services (USCIS) has proposed a regulatory change that is intended to improve the procedures for certain applications for waiver or forgiveness of periods of unlawful presence in the United States. This is only a proposal at this time, and, as of this writing, these changes are not in place. The purpose of this proposed regulatory change is to reduce the time that a U.S. citizen is separated from his/her spouse and/or children in a case filed by the U.S. citizen for these immediate relatives, if it is necessary for such immediate relative to obtain a waiver of a prior period of unlawful presence. This proposal is explained here for the benefit of MurthyDotCom and MurthyBulletin readers.

Background of the USCIS Proposal

Most foreign nationals seeking permanent residence (commonly referred to as the “green card”) typically complete the process within the United States by filing an application for adjustment of status (Form I-485). However, not everyone who is otherwise qualified for permanent residence is able to meet the requirements for filing the I-485. These requirements include establishing lawful entry into the United States. (Depending upon the basis for the I-485 filing, it often is necessary to show that valid nonimmigrant status was maintained since entry to the United States.)

If an individual is not eligible to file the I-485 to complete the green card process, the only other option for processing involves departing the United States. The alternative to the I-485 is an application for an immigrant visa at a U.S. consulate abroad. This is known as consular processing.

Departure from the U.S. Prompts Bar on Reentry

As explained above, to complete the immigration process, individuals who initially entered the United States unlawfully usually must depart the country and apply for an immigrant visa from abroad to be able to obtain the green card. The same holds true for many who entered lawfully, but fell out of status for an extended period beyond 180 days or one year. For many of these individuals, however, leaving the country has severe consequences, as it triggers a three- or ten-year bar on reentering the United States.

The three-year bar applies to most persons who have been unlawfully present in the United States for more than 180 days. This increases to a ten-year bar for most individuals who were unlawfully present in the United States for one year or more. This bar starts at the point of the foreign national’s departure from the United States.

Current Condition: Waiver Filing Allowed Only upon Departure

Since the three- or ten-year bar for unlawful presence is triggered by one’s departure from the United States, there is no mechanism under current procedures for filing a waiver request prior to departure. Foreign nationals in this predicament, therefore, find themselves unable to fix their immigration status from within the United States, and unable to initiate the required waiver until after departure. That is, in order to waive the three- or ten-year bar and receive an immigrant visa, these individuals must depart the country and file an I-601 immigrant waiver application based on extreme hardship to a qualifying family member. Unfortunately, this process is lengthy and can result in an extended separation from family members.

Proposal: File for Provisional Waiver in U.S. Before Departure

In order to remedy this situation and promote family unification, the proposed regulatory change would allow certain spouses and children of U.S. citizens to apply for waivers on a provisional basis prior to leaving the United States. Although the applicant would still have to travel abroad to complete the immigration process and receive an immigrant visa, the provisional waiver would significantly reduce the period of separation from U.S. citizen family members. Under this proposal, the USCIS would adjudicate the waiver application in the United States before the family faces separation.

Provisional Waiver to be Available to Limited Group

Under the proposed regulation, the provisional waiver will only be available to spouses and unmarried children (under 21 years of age) of U.S. citizens who are subject to the three- or ten-year bar upon departure. Therefore, it will not be available to any other relatives of U.S. citizens or to family members of lawful permanent residents.

It should also be noted that the provisional waiver will cover only the unlawful presence ground of inadmissibility. As such, if one is subject to another ground of inadmissibility, such as fraud, this would have to be addressed separately under the current legal framework.

Benefit to Family of U.S. Citizen who Entered Unlawfully

It should be noted that this option would benefit spouses and unmarried children (under 21 years of age) of U.S. citizens who unlawfully entered the United States and subsequently accrued unlawful presence. Spouses and unmarried children (under 21 years of age), who entered the United States legally but fell out of status thereafter, can complete the immigration process through the U.S. citizen spouse or parent without departing the country. They should not need this waiver, therefore.

Waiver Standard of “Extreme Hardship” Still Applies

Despite the proposed change, the waiver requirements of demonstrating extreme hardship to the qualifying U.S. citizen family member still apply. The proposed changes related to when and how the waiver can be filed, but do not lower the standards or otherwise make it easier to obtain.

Provisional Waiver Not in Effect

The provisional waiver is not in effect and is not available to potential applicants until the USCIS publishes a final rule in the Federal Register specifying the effective date. In the meantime, the USCIS will reject any application requesting the provisional waiver and will return the application package and any related fees to the applicant. Given that the provisional waiver is NOT in effect at the time of this writing, applicants should be wary of unscrupulous individuals claiming currently to be able to file a provisional waiver and seeking a fee to do so.

Conclusion

The provisional waiver should provide a benefit to many families who face lengthy separation while awaiting the adjudication of their applications. MurthyDotCom and MurthyBulletin readers must understand, however, that the provisional waiver is currently only a proposal and not yet in effect. As new information becomes available, we will keep readers updated on the progress of this provisional waiver for those families who would benefit from such an opportunity to reunite without the hardship of lengthy separation.

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