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USCIS Announces Final Rule to Keep Families Together During the Waiver Process

Posted by attorney Anthony Aboseif

On January 2, 2013, U.S. Citizenship and Immigration Services (USCIS) announced a final rule to keep families united during the waiver process.

Many foreign nationals who made illegal entries into the United States are not allowed to adjust their status. Adjustment of status means becoming a permanent resident of the United States (getting a green card) without leaving the United States. Here is a common example of how the process works currently:

A foreign national makes an illegal entry into the United States by crossing the border without being inspected by a U.S. Customs and Border Protection officer. He remains in the United States unlawfully for more than 6 months. Later the foreign national marries a U.S. Citizen. The U.S. Citizen spouse now wants to file a petition to give her husband a legal immigrant status. She files a petition, which is approved. However, because her husband entered the United States without being inspected, he must return to his home country and finish the rest of the process there. When he arrives for his interview at the consulate or embassy in his home country, he is told that because he remained in the United States unlawfully for more than one year, he is not allowed to enter the United States for 10 years (if he stayed in the United States unlawfully for more than 6 months, but less than a year, he would not be allowed to enter for 3 years).

The foreign national is told that in order to re-enter the United States before 10 years, he must show extreme hardship to his U.S. citizen wife if he were not allowed to return. He must file a waiver application.

Under the current process, families could remain separated for several months or years until a waiver application is approved. Under the new process effective on March 4, 2013, individuals can now apply for a provisional unlawful presence waiver before leaving the United States to attend the interview at the U.S. consulate or embassy in their home countries. This will reduce the time that U.S. citizens are separated from their immediate relatives.

Individuals who qualify for the new process and can get a provisional unlawful presence waiver must:

  • be an immediate relative of a U.S. citizen

  • be inadmissible solely on account of unlawful presence, and not because of other factors such as a criminal history or previous immigration violations; and

  • demonstrate that denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent

Note that foreign nationals cannot demonstrate extreme hardship to their U.S. citizen children. Also note that foreign nationals must still return to their home countries. The goal of this process is to simply minimize the time of separation.

For more information from USCIS, click here.

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