New Rules to Speed Waivers - Saving Years of Waiting to Unite Families
The Immigration Service (US Citizenship & Immigration Services) is proposing a new easier and faster decision making process for those who need to file a waiver overseas in order to obtain their permanent residency (Green card). These new rules will greatly speed up the process, allowing applicants to await a decision in the US instead of overseas, thus saving years of waiting for the approval of their waiver.
Who Does this Affect?
This new process is for spouses and children of US Citizens who are in the United States and cannot obtain permanent residency (Green-card) because they entered the US illegally or cannot prove their legal entry. The new rules only apply if the applicant in question has a US Citizen Spouse or Parent who is filing the waiver application. Children, even if US Citizens, cannot apply for waivers for their parents.
In the new proposal, USCIS will allow immediate relatives (spouses and parents) of U.S. citizens to request provisional waivers for their spouses or children prior to their departing the United States for consular processing. Once a visa petition is approved, the applicant would be able to file a provisional waiver request. In this waiver request, the applicant would have to show that a qualifying relative – a US Citizen Spouse or parent -would suffer extreme hardship if the applicant was barred from re-entering the US for a period of 3 or 10 years. The qualifying relative for the waiver does not necessarily have to be the relative who filed the immigrant visa petition.
For example, a person eligible for the new procedure came to America without a visa (illegally through Canada, Mexico,) perhaps as a child, remained in the US, married a US Citizen, has his own US born children, but cannot obtain a green card through his spouse or children because he entered the US without a valid visa. Persons in this situation would normally have to return to their home country, file a waiver request with the US Consul abroad, and wait 1-2 years overseas for a reply. This often leads to marital problems and problems with children when a parent must remain in a foreign country for several years, breaking up families and causing hardship.
Under the new procedure, an applicant would file a petition and then a provisional waiver. Once approved, the applicant would have to travel to the US Embassy in their home country to complete their permanent residency application, but would have to remain overseas for only a few days to obtain a visa, not a few years under the old procedures.
The Current Visa Waiver Process – Uncertainty & Delays
If an individual entered the US illegally, and remains in the US illegally for a period of 180 days or greater, and they leave the country, they cannot re-enter for a period of 3- or 10-years. Individuals previously could apply for a waiver of this bar only after an interview at an American Consulate overseas. At that time, most individuals would file a waiver and have to wait from one to two years for approval.
Under existing procedures, individuals subject to this re-entry bar face years of separation from their family while awaiting approval of their waiver. Applicants also risked not being able to return at all if their wavier application was denied. But the lengthy delays and risks in the current waiver procedure discourage many family members from applying.
The New Waiver Process
The new process will allow spouses and children of U.S. citizens to apply for waivers while they remain in the U.S. In the waiver, the applicant would be kept to the same standard as under the old rules- to prove that the sponsoring US Citizen spouse or parent would suffer extreme hardship if the applicant was not permitted to enter the US for a period of 3 or 10 years. If approved, the applicant would still have to travel outside the US to obtain an immigrant visa, but would do so with an approved provisional waiver. The provisional waiver will significantly reduce the waiting period abroad and the separation from the applicant’s family by several months or years.
Currently, many people in this predicament did not leave knowing that they would have to apply for a waiver at the US Consulate abroad which could take 1-2 years. Even then, there was a risk that the waiver would be denied. Under the new rules, an applicant could apply for a wavier BEFORE leaving the US. They would leave for a short period of time (usually only several days) obtain an Immigrant Visa, and be able to return to be with their family members. If the waiver is not approved, the applicant can decide not to leave the country, but could reapply for a waiver.
It is important to remember that this new visa process only applies to waiving the fact that someone stayed unlawfully in the US. If an individual is subject to another restriction from entering the US (because they lied on a previous application, were ordered removed/deported or committed a crime) then they will still have to apply for a waiver at the American Embassy overseas. The waiting time for these waivers filed overseas remains the same (generally several years). Also, the chances of obtaining an approval are also subject to a decision by the Immigration Service overseas.
The Immigration Service has cautioned that if a waiver is not approved under this new procedure, the individual is subject to the regular application of the Immigration Laws.
Not Yet In Effect
The new waiver procedure has not taken effect. USCIS issued a notice of proposed rule-making that will include a proposed regulation The final rules should be effective by the end of this year.
What to do in the Meantime?
The recent announcement does not change current waiver procedures, and will not affect those who have pending waiver applications. Individuals with a waiver application in process should consult as to the best way to proceed. Individuals who will be eligible for a wavier under the new procedures should start to collect information and evidence which would show that their qualifying US relative (spouse or parent) would suffer extreme hardship if the applicant was prevented from entering the US for a period of 3 or 10 years. Once the new procedures are in place (at the end of this year) we should be able to file for the provisional waiver in the US.
Major Impact
The proposed rule change would mean that many Americans will no longer be separated for months or years from family members. Hopefully, this would encourage many individuals to file for permanent residency for their spouses and children who entered the US illegally.
As with any Immigration related matter, it is best to consult with an attorney to obtain the full impact of this or any immigration related legislation before taking any action. We at Kurczaba Law Offices are here to assist you with the optimal manner in which to obtain permanent residency, obtain a waiver, or complete any immigration matter.
Christopher Kurczaba
Kurczaba Law Offices PC
6219 N. Milwaukee
5444 S. Archer
Chicago
(773) 774-0000
www.kurczaba.info
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Please contact our office so that we can make a determination of your eligibility to file and so that we can help you track your progress. This article is for general informational purposes only.
