United States Citizenship and Immigration Services (USCIS) has just issued a proposed policy change that will potentially allow thousands of individuals living in the United States without valid legal status to legalize their status much more easily than is presently possible. Presently the majority of individuals who entered the United States without documents or who entered the United States with visas but overstayed their visas are barred from legalizing their status while in the United States and can only obtain visas outside the United States at consulates. The exception is for children under 18, parents, and spouses of United States Citizens who entered the United States with visas.
The conundrum is that once an individual with unlawful presence leaves the United States to pick up a visa, he or she is subject to a bar to returning to the United States (for a period of three years for individuals who obtained 180 days to 364 days of unlawful presence) or ten years (for individuals who obtained a year or more of unlawful presence). There is a waiver of this bar for applicants for immigrant visas (green cards) who have a United States Citizen (USC) or lawful permanent resident (LPR) parent or spouse who would suffer extreme hardship in the event that the waiver is not granted. Extreme hardship takes into account such factors as impact on health of the qualifying relative, financial deprivations, interruption of career or education, country conditions in the alien’s home country, and other factors. I-601 waivers of unlawful presence are currently accepted by overseas USCIS offices only following a denial of the immigrant visa by the consular officer. Processing times can vary from a few days to a year or more.
Because of the risk in the case of a denial of the waiver, which would leave a visa applicant stranded outside the United States for up to ten years, as well as the long processing time even where the waiver is ultimately granted, many individuals are rightfully leery of leaving the United States to pursue permanent residence even when they have a qualifying relative and an approved immigrant visa petition. This fear is particularly true in cases where individuals who may have lived almost their entire lives here and do not want to risk a year of lost income and separation from family in a strange country with no guarantee that he or she will be allowed to return to what is, for all intents and purposes, home.
There are several proposed changes to the waiver procedures. First, USCIS would allow for filing of the waiver application within the United States prior to any visa interview at the consulate. The individual would still need to leave the US and face the bar, but now he or she would do so with a provisional waiver grant having been issued ahead of any such departure. The second change is that visa processing times abroad for individuals who require such waivers would now be reduced to a matter of weeks, not months. Thus an individual who is qualified for an immigrant visa but who must leave the US in order to do so can now file the waiver application ahead of time and leave the United States knowing that the waiver was approved and that the wait time outside the United States will be fairly minimal. The third change is that these state-side filed waivers will only be for individuals who were petitioned by USC immediate relatives (spouse, adult son or daughter) and whose qualifying relatives (parent or spouse) for the waiver are also US citizens, although it does not appear that the petitioning relative and qualifying relative must be the same individual. Thus an adult son or daughter could petition a parent and that parent’s waiver would hinge on the hardship to the applicant’s parent (the petitioner’s grandparent). Finally this procedure will only be in place for individuals who are inadmissible for having been present in the United States without authorization. Waivers for criminal activity, fraud, and other bars must still be sought outside the United States.
The proposed changes, while not doing away with the bar, will clearly make family reunification much easier for individuals who are currently stuck in the Catch-22 situation of wanting to legalize their immigration status but who cannot or will not leave the United States to gamble on being able to return. In the current political situation, where the chances of passing a comprehensive immigration reform bill seem practically non-existent, the proposed policy changes will at least alleviate a difficult situation for an untold amount of families who have long believed that their situation is hopeless.
***
ATTORNEY LOVE MACIONE is an expert Immigration Attorney who has personally assisted thousands of individuals obtain and maintain lawful immigration status in the US Attorney Macione has over 14 years of experience handling every type of immigration case, as well as federal litigation and appeals. She is admitted to State Bars of California and Massachusetts and is also licensed to practice before US District Courts, the US Court of Appeals for the Ninth Circuit, USCIS, ICE, the Immigration Courts, and the Board of Immigration Appeals, She has also been certified as a specialist in Immigration & Nationality Law by the Board of Legal Specialization of the State Bar of California,on whose Immigration and Nationality Legal Advisory Commission she presently serves. She can be contacted at (408) 436-0789, This e-mail address is being protected from spambots. You need JavaScript enabled to view it or www.MyImmigrationLawyers.com. All information is intended for general information purposes and should not be deemed as legal advice or relied upon for any specific situation.
| Next > |
|---|
