Written by attorney Wassem M. Amin

Immigration: New USCIS Rule Allows Unlawful Presence Waivers for Illegal Aliens with US Relatives

A new Executive Order by the Obama Administration will make it easier for illegal aliens to obtain permanent residency if they have immediate relatives who are U.S. Citizens. Scheduled to go into effect on March 4, 2013, illegal immigrants who can demonstrate that time apart from an American spouse, child, or parent would create "extreme hardship" can apply for a visa without leaving the United States. If approved by USCIS, the applicant would be required to leave briefly in order to obtain the visa from their native country.

According to comment by the Department of Homeland Security, the rule seeks to reduce the time illegal immigrants are separated from their U.S. families while seeking legal status. Although the rule is currently only applicable to those immigrants with U.S. citizens, according to an article in the L.A. Times, it most likely will be expanded to include relatives of permanent residents as well.

This rule will significantly assist many immigrants previously stuck in a "Catch-22." Previously, many illegal immigrants who may have sought a legal adjustment of status refused to do so out of fear that their hardship waiver would be denied, and they would be stuck out of the country.

Extreme Hardship, under the Immigration and Naturalization Act, is a statutory requirement that the applicant must meet to qualify for the waiver. However, it is not a defined term and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case. When USCIS assesses whether an applicant has established extreme hardship, USCIS looks at the totality of the applicant's circumstances and any supporting evidence to determine whether the qualifying relative will experience extreme hardship.

Beginning on March 4, 2013, Form I-601A will be available to those seeking to apply for a waiver under this new rule. The final proposed rule and comments can be read here.

Eligibility Requirements:

  1. Applicant is a beneficiary of an approved I-130 Petition for Alien Relative or I-360 (Special Immigrant) petition which classifies them as an immediate relative.
  2. Alien is solely inadmissible because of unlawful presence for more than 180 days.
  3. Physically present in the U.S.
  4. Alien establishes that U.S. citizen spouse or parent would suffer extreme hardship if denied admission as a permanent resident.
  5. Alien is 17 years or older at time of application filing.

Disclaimer: This article is for informational purposes only and it is not intended as legal advice. Their are many other factors that may impact an applicant's eligibility. Consultation with a knowledgeable Immigration Attorney is important. For more information, please contact Wassem M. Amin.

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