DHS will be issuing new regulations that will allow certain immediate immigrant visa beneficiaries, that are subject to the 3/10 year bar, to apply for a waiver inside the US rather than outside the US at the consulate overseas. The benefit of this new regulation is 1) it reduces the time for which the Petitioner and beneficiary will be separated while going through the consulate process and 2) Beneficiary can get a provisional approval on the waiver of the 3/10 year bar before beneficiary departs the US therefore reducing the risk of uncertainty and being stuck outside the US for up to 10 years.
DHS announced on January 6, 2012 that it will be issuing new regulations in the coming months for how unlawful presence waivers will be processed for certain immediate relatives of U.S. citizens who are filing immigrant visa applications abroad by allowing these individuals to file for a provisional unlawful presence waiver while inside the U.S. If approved, they can then depart the US to undergo consulate visa processing knowing that they have a provisionally approved waiver of the 3/10 year bar.
To qualify for a provisional waiver of unlawful presence bar, the immigrant will need to show that a lengthy bar from the U.S. would cause their U.S. citizen spouse or parent “extreme hardship.”
The new regulations would benefit certain immigrants who are unable to adjust their status to green card holder inside the US such as immigrants that entered the US without inspection (EWI), immigrants that entered the US without a visa, immigrants that entered the US as a crew men or sea men (C-1 or D-1) and jump ship, immigrants that entered on a K-1 fiancé visa but failed to marry their US citizen fiancé. If these immigrants are not grandfathered by INA section 245(i), typically, they cannot get their green card inside the US. These immigrants would have to leave the US and get their immigrant visa from the US consulate in their home country. This situation becomes a Catch-22 situation in that when the immigrants leave the US to get their immigrant visa overseas, then the 3/10 year unlawful presence bar kicks in to bar them from returning to the US assuming they accumulated over 180 days of unlawful presence. Once there is a determination that the unlawful presence bar applies to the immigrant at the Consulate overseas, the immigrant under current procedure would have to apply for the waiver at the consulate overseas which in turn will forward the waiver to the DHS for approval. The entire process can take months or even years while at the meantime the immigrant is waiting outside the US.
Meanwhile, families are separated, and the spouses and children of U.S. citizens and lawful permanent residents are forced to endure potentially dangerous situations in the home country until the waiver is granted and they can return to the U.S.
The new procedure will allow certain immediate relatives of U.S. citizens apply for waivers of the unlawful presence bars while remaining in the U.S. If the individual is found eligible, USCIS will grant a provisional waiver. He or she will still have to depart the U.S. and visit a U.S. consulate abroad to apply for an immigrant visa. During the immigrant visa interview, the consular officer will make the finding of inadmissibility based on unlawful presence and apply the provisional waiver. If other grounds of inadmissibility are found, the individual would need to submit another waiver application, if eligible, while abroad. The provisional waiver will reduce the wait period abroad and the separation from the applicant’s family by several months or years. In addition, the applicant will know whether the waiver was granted prior to departing the US.
The new process will only apply to immediate relatives whose U.S. citizen spouse or parent would suffer extreme hardship if the bar is not waived. The new provisional waiver procedure has not yet taken effect. The DHS notice issued on January 6, 2012 announces the DHS intent to issue a proposed regulation at a future date.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it ; Website kenreyeslaw.com.
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