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Proposed Waiver Rule Expected to Benefit Thousands

The Department of Homeland Security on January 6, 2012 announced that it is proposing a rule that will allow spouses and children of U.S. citizens, who are ineligible to adjust status, to apply for a provisional waiver in the U.S. before leaving to process their immigrant visa application abroad. Under the current law, waivers are filed outside the United States.

This was in response to recommendations made by advocacy groups, including the American Immigration Lawyers Association.

Under the law, those who were unlawfully present in the U.S. for more than 180 days but less than one year face a 3 year bar to reentry. If the unlawful presence reached 1 year or more, the bar is 10 years. This bar takes effect when the alien departs from the U.S. If the inadmissibility due to unlawful presence is waived, the bar will not apply.

Adjudication of waivers could take anywhere from three months to several years. If the alien applies for the waiver abroad, he/she will be separated from his/her family in the United States. If the waiver is denied, unless an appeal is successful the alien may have to spend the rest of the 3 or 10 year period overseas and away from his/her family.

This proposal will benefit thousands of families. Stateside processing will bring undocumented immigrants out of the shadows by encouraging them to apply for a green card and file for a waiver while they remain in the United States. It will also streamline the waiver process.

To qualify for the waiver, the alien must establish that he/she is the immediate relative of a U.S. citizen and that the denial of the waiver would result in extreme hardship to a qualifying relative. The qualifying relative must be a U.S. citizen spouse or parent.

Note that only immediate relatives are covered, so sons and daughters over 21 years of age of U.S. citizens, as well as siblings of U.S. citizens, are not affected by this rule change. The rule also will not apply to family members of lawful permanent residents.

The proposal is also limited to waiver of unlawful presence. It does not include waiver of other inadmissibility grounds such as fraud or misrepresentation and criminal conviction. Aliens subject to these inadmissibility bars must obtain a waiver under the normal procedure, i.e. depart the United States and file a waiver application after a finding of inadmissibility at the U.S. consulate.

Since the proposed rule is quite narrow, it is important to seek the guidance of competent counsel before applying for the provisional waiver and leaving the United States.

While this new procedure will keep families together and reduce the time that they are separated, there is no reason why the DHS should not cover adult children of U.S. citizens, and spouses and children of LPRs under the proposal. Hopefully they will be included in the final rule expected to be released this year.

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