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I can stay in the U.S. And submit my Waiver!

Posted by attorney Brian Lerner

There is going to be a new way to submit the Waiver of the 3/10 year bar.

Answer: Normally, you would have to leave the U.S to submit the Waiver and await adjudication outside the U.S. However, it seems that will change. On Jan. 6, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a notice of intent in the Federal Register outlining its plan to reduce the time that U.S. citizens are separated from their spouses and children under certain circumstances while those family members go through the process of becoming legal immigrants to the United States.

Currently, spouses and sons and daughters of U.S. citizens who have accrued a certain

period of unlawful presence in the United States, and have to leave the country as part of

the legal immigration process, are barred from returning to their families for as long as 3 or

10 years. They can receive a waiver to allow them to return to their families by showing

that their U.S. citizen family member would face extreme hardship as a result of the

separation. This proposal would streamline the processing of these individuals’ waiver

applications based on unlawful presence; USCIS proposes to process their waiver

applications in the United States before any American family faces separation. The process

would only apply to immigrants who are eligible for a visa.

Under the proposed process, the spouses and children of U.S. citizens who are eligible for a

visa to immigrate legally to the United States, but who need a waiver of inadmissibility for

unlawful presence in order to obtain that visa expeditiously, would apply for a provisional

waiver before leaving the United States to have their immigrant visa application processed

at a U.S. embassy or consulate abroad (as they must pursuant to law). The notice limits the

streamlined process to those individuals who are inadmissible based solely on having

accrued a period of unlawful presence and – pursuant to statutory requirements – who can

demonstrate extreme hardship to their U.S. citizen relative. All individuals affected by this

streamlined process would need to meet all legal requirements for admission to the United

States, including the requirement that they process their visa application at a U.S. consulate


With the change outlined in the notice, individuals who currently qualify for a waiver of

inadmissibility under the existing eligibility standards, and who can demonstrate that

separation from their U.S. citizen spouse or parent would cause extreme hardship to that

relative, would be allowed to apply for a waiver while still in the U.S.

By allowing these individuals to apply for waivers in the U.S. and making a provisional

determination of waiver eligibility before the individuals must depart the country for visa

processing, USCIS would provide a more predictable and transparent process and improved

processing times, minimizing the separation of U.S. citizens from their families. The

change would also streamline the process for both USCIS and the Department of State.

As a result, this change would encourage individuals who may be eligible for a waiver of inadmissibility to seek lawful readmission to the United States by limiting the amount of time they would need to spend away from their U.S. citizen spouse or parent.

It has taken years and years for the government to come to the realization that in fact it is a severe hardship. Hopefully, this is the first in a line of new regulations and laws to strip away the harsh immigration laws entered in 1996.

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