The Proposed Unlawful Presence Waiver for Immediate Relatives of U.S. Citizens
On January 2, 2013, U.S. Citizenship and Immigration Services (USCIS) announced a new stateside hardship waiver process for some immediate relatives of U.S. citizens. The new rule goes into effect on March 3, 2013. The rule applies to certain foreign nationals who entered the U.S. without inspection and are therefore barred from legalizing their status because of their unlawful presence.
What is the current law?
Spouses, sons and daughters of U.S. citizens who have been unlawfully present in the U.S. are required to leave the country in order to apply for permanent residence. Once they have departed the U.S., they are barred from returning to their families for 3 to 10 years. However, the U.S. citizen spouse or parent who has petitioned for them may request a waiver which, if granted, would allow them to return to their families sooner.
A waiver application must be accompanied by evidence showing:
- The foreign national’s U.S. citizen family member would face extreme hardship as a result of continued separation; and
- 2. The foreign national warrants a favorable exercise of discretion.
The standard of proof for both elements is very high. The simple fact of being separated from the relative is not considered to be extreme hardship. There must be documentation of special circumstances raising the hardship to an extreme level. Then there are a number of positive and negative factors that must be weighed to determine whether a given person deserves to be admitted to the U.S. despite their prior period of unlawful presence.
What has changed?
Previously, hardship waivers had to be filed abroad at the U.S. Embassy or was made exclusively by consular officials. These decisions did not always happen quickly. U.S. citizens often suffered long periods of separation from their family members while waiver applications were pending.
Under the new process, the spouses and children of U.S. citizens who are eligible for an immigrant visa but need a waiver of unlawful presence can apply for a provisional waiver before leaving the U.S. The decision on the waiver will be made by a USCIS officer based on the same standards used by the consular officers abroad.
If a waiver is granted, applicants are still required to return to their home countries in to apply for their visa and re-enter the U.S. legally. However, the stay abroad will generally be much shorter, since the waiver has been pre-adjudicated.
Why does USCIS refer to the waiver as “provisional?”
USCIS refers to the waiver as “provisional” because it will not take effect until after the applicant:
- departs the United States;
- appears for his or her immigrant visa interview; and
- is determined by a consular officer to be otherwise admissible to the United States.
Who can benefit from the new process?
An individual may seek a provisional unlawful presence waiver if he or she:
- Is physically present in the United States at the time of filing and when biometrics are collected;
- Is at least 17 years of age;
- Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
- Is actively pursuing the immigrant visa process and has already paid the Department of State’s immigrant visa processing fee;
- Is inadmissible based solely on having accrued a period of unlawful presence, and is not subject to any other grounds of inadmissibility;
- Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent
|♦||More frequently asked questions about the proposed stateside waiver|