USCIS Proposes New Immigration Waiver

By Julia at Legal Language
Posted on 04/16/2012
In Immigration, News

US Citizenship and Immigration Services recently proposed a rule to allow for certain immigrant relatives of US citizens to apply for a provisional waiver that would cut the time they are separated from their families while their visas are processed overseas.

The Current Law

Under the current law, an illegal immigrant must depart the US if he or she has been unlawfully present in the US for a period of time.  Unlawful presence in the US usually results in a bar from re-entering the US from three to ten years. The length of the ban depends on how long they have lived in the US without permission.

Currently, these immigrants must wait until they have departed the US to apply for a waiver of their ban of re-entry. This waiver application process can take quite some time, and there is no guarantee that the immigrant will even receive one. According to USCIS, this process causes unnecessary suffering to US citizens who are separated from their loved ones while they wait for consular processing overseas to obtain an immigrant visa.

The Proposed Rule

The proposed rule creates an alternative process for certain immediate relatives of US citizens to apply for and receive a provisional waiver of unlawful presence while they are waiting for their cases to be processed  at consular offices overseas.

Immediate relatives of US citizens could obtain a provisional waiver before they return to their home country to seek a visa to return to the US legally. Although the immigrant relative would still be required to leave the US, USCIS believes the waiver would reduce the time the relatives are out of the country from months to days or weeks. Currently, it takes about six months for the government to issue a waiver. USCIS Director Alejandro Mayorkas says the purpose of the proposed rule is to minimize bureaucratic delays that separate Americans from their families.

The waiver application would require the immigrant to show that the US citizen relative would endure extreme hardship if separated from his or her close relative. Among other things, the waiver applicant must show that he or she is the beneficiary of an approved visa petition classifying him or her as an immediate relative of a US citizen, is actively pursuing the immigrant visa process, has already paid the immigrant visa processing fee and is not subject to any other grounds of inadmissibility.

An immigrant relative would not be eligible for the waiver if he or she is subject to a final order of removal, is found inadmissible at the time of the consular interview for reasons other than the unlawful presence, or has already been scheduled for an immigrant visa interview at a consulate abroad.

What This Means for Immigrants

The proposed rule is not in effect until USCIS receives public comments on it. USCIS is accepting input until June 1, 2012 through USCIS will consider all comments before publishing the final rule. Until the final rule is published, the current rule remains in effect.

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