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Notice of Proposed Rulemaking (Not Yet In Effect): Provisional Waivers for Immediate Relatives

Posted by attorney Mary Madrid-Crost

This article is a preview of the Department of Homeland Security’s intention to streamline the waiver application process for immediate relatives who have been unlawfully present in the United States for quite some time. There is a lot of excitement about this positive development but everyone should be cautioned that, until a final rule is published in the Federal Register, the current procedure remains the same. Also, the public should be warned against unauthorized practitioners who overpromise and prey upon trusting individuals who are eager to legalize their immigration status. There is no change in the procedure as of yet.

There are hundreds of thousands of aliens who cannot legalize their immigration status within the United States despite their eligibility for visas as immediate relatives of U.S. citizens. This group of aliens must leave the U.S. in order to complete their visa application. A majority of these individuals have accumulated more than 180 days of unlawful presence in the U.S., thus, leaving would trigger a disqualification to return for at least 3 years or up to 10 years unless a waiver is approved to allow the visa applicant to return sooner. Many who have been through the process have experienced an excruciatingly long separation from loved ones.

Under the current procedure, the visa applicant can only apply for a waiver of unlawful presence after leaving the United States. Waiver applications are not decided immediately, hence, subjecting the visa applicant to be away from family members for a long period of time. To a lot of families, this separation is unbearable, therefore, causing extreme hardship.

A convincing demonstration of extreme hardship upon the beneficiary’s U.S. citizen spouse or parent is an important component of this waiver application process.

The intent for a proposed rulemaking provides a glimpse of the new waiver application process that allows immediate relatives of U.S. citizens to apply for a provisional waiver while they are in the United States. This allows the applicant to continue to be with their families while waiting for a decision. Once the provisional waiver is approved, and in order to make it effective, the applicant must leave and continue the visa application process at a U.S. consulate abroad. Only immediate relatives, as defined by the Immigration and Nationality Act, of U.S. citizens may potentially benefit from a provisional waiver for unlawful presence. The existence of any issue other than unlawful presence (such as fraudulent means of entry, false identity, returing without permission after deportation, and the like) will be handled pursuant to the current procedure described above.

The process of rulemaking consists of several steps. To put is simply, the first step is for the proposed rulemaking is published in the Federal Register. The government agency then solicits comments from the public. After the comment period, the agency prepares the final rule. The final rule may be modified after taking into consideration all the comments submitted during the comment period. The final rule is expected to be published in the Federal Register close to the end of the year.

Assuming that the new procedure previewed here will become the final rule, below are examples of individuals who may benefit from it –

Spouses and Children of U.S. Citizens who Entered the U.S. Without inspection (EWI)

In 2005, Alex traveled to Canada. Although Alex did not have a U.S. visa, he was able to enter by land. He fell in love with Cathy and got married three years later. They have two U.S. citizen children. Cathy filed an immigrant petition for Alex as soon as they got married but because he was not inspected by an immigration officer when he entered the U.S., he could not proceed with his immigrant visa process within the U.S. He needed to leave and process his immigrant visa abroad. However, the length of his unauthorized stay in the U.S. would have prevented him from returning for at least 10 years. For Alex and Cathy, leaving to pursue the visa application abroad was an impossible solution in light of the fact that Cathy needed to work and no one would be available to take care of their two young U.S. citizen children. Alex’s lengthy absence would subject Cathy to extreme hardship.

The new process for handling waivers would enable Alex to file an application for provisional waiver in the U.S. and wait for the outcome of the application while spending time with his family. Once the waiver is approved, he can travel to a consulate abroad to continue the process for the issuance of his immigrant visa and enter the U.S. as a lawful permanent resident once all the requirements for visa issuance are met.

Crewmembers (C1 and D1 Visa Holders) who Married U.S. Citizens

Cesar, a widow, had a low-paying job in a cruise ship. While the ship was docked in Florida in 2002, he learned about opportunities to earn more income in the U.S. so that he could send the children he left back home to school to earn their professional degrees. One of the children, Dan, was focused on becoming a licensed physical therapist in the U.S. Dan succeeded in becoming a green card holder through employment-based immigration. Dan, who is now a U.S. citizen, could have easily petitioned for his father Cesar but having “jumped ship" is similar to entering without inspection – they are unable to legalize their stay without the benefit of Section 245(i) which would have allowed the payment of a penalty, under certain conditions, in order to be able to proceed with the green card application.

Cesar eventually met Liza, a U.S. citizen widow and a strong cancer survivor. Cesar and Liza gave each other hope, treasured being together and decided to get married. They longed to travel to places around the world but Cesar had to work out his immigration status. Cesar would need to apply for a waiver and the new procedure for a provisional waiver, allowing the applicant to await its approval in the U.S., would enable Cesar and Liza to spend more time together, before Cesar proceeds abroad to continue his application for an immigrant visa.

Children Who Crossed the Border at a Tender Age

There are thousands of infants and unsuspecting children who were brought to the U.S. through the borders by their relatives. Many of these children cannot proceed to college because they cannot avail of student loans for lack of social security numbers.

Miguel, an agricultural worker, gained residency through employment. This process took so long. He finally received his green card and was reunited with his childhood sweetheart, Celina. They got married and were blessed with a child, Mario. As a green card holder, Miguel was able to file a petition for his family but it would have taken a long time for them to immigrate. The family could not bear being separated much longer. Celina and Mario were denied visitor’s visas many times so Miguel’s wife, Celina, and their 3-year old son risked it and crossed the border.

Life got in the way and it took some time for Miguel to become a U.S. citizen. Meanwhile, Mario excelled in high school but cannot proceed to college because he is undocumented.

The manner in which Celina and Mario entered without inspection left them with no other option to legalize their immigration status but to exit and apply for their immigrant visas at the U.S. Consulate back home. At the present state of the law, leaving the U.S. would have barred them from returning for 10 years without the approval of a waiver to allow them to return prior to the lapse of the 10-year bar. This would have meant another lengthy separation between the family members.

Under the new system, Celina and Mario would be able to apply for a provisional waiver in the U.S. Celina and Mario could be with Miguel while awaiting approval of the waiver application. After the waiver is granted, they can go for their immigrant visa interview at the consulate and come back as lawful permanent residents, assuming there are no additional grounds for inadmissibility.

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