BEGINNING MARCH 4TH: NEW CHANGE TO REDUCE FAMILIAL SEPARATION DURING IMMIGRATION PROCESSING

This entry is an update to our blog entry on January 28, 2012.  THE PROPOSAL WE DISCUSSED IN THAT ENTRY HAS NOW BEEN CONFIRMED.  As of Monday, March 4, 2013, the new Procedural Rule will take effect to allow certain Immediate Relatives of U.S. Citizens to request their unlawful presence waiver while inside the U.S.  This will be known as the Provisional Waiver process.

BACKGROUND INFORMATION:

In most cases, immediate relatives of U.S. citizens who entered the country illegally but who now wish to apply for U.S. lawful permanent status must depart the U.S. for a significant and uncertain amount of time in order to complete their case processing.

The main source of the delay is the step that requires applicants to request and obtain a waiver (or in Spanish, un perdon) based upon the extreme hardship that their U.S. citizen or Legal Permanent Resident spouse or parents will suffer if they are not allowed to return.

It can take months, even years, for U.S. Citizenship and Immigration Services to reach a decision on the waiver application.  During that time, the applicant must suffer through a painful separation from his or her loved ones in the U.S.

Even before his re-election, President Obama had expressed the desire to rethink this process and find common-sense solutions to alleviate the suffering of American families.   While the President does not have the power to change the law that requires these applicants to leave the United States for their visa processing in the first place, he has put into place a rule that aims to shorten the amount of time that certain applicants are separated from their loved ones.

THE NEW PROVISIONAL WAIVER RULE:

The new rule allows certain Immigrant Visa applicants to submit their application for a “provisional waiver” while still inside the U.S., rather than having to wait until after their departure from the U.S.  This will cut down significantly on the amount of time that the applicant will have to be separated from his/her family.

However, keep in mind only certain applicants will be able to choose this option.

WHO CAN APPLY FOR THE PROVISIONAL WAIVER:

The Provisional Waiver option is available to Immediate Relative applicants for an Immigrant Visa who:

• Have an approved I-130 immediate relative petition;
• Have paid the immigrant visa processing fees to the National Visa Center, U.S. Department of State;
• Are present in the United States at the time of provisional waiver filing;
• ONLY require a waiver due to their unlawful presence (and nothing else; for example, they have never committed Immigration fraud and they do not have a criminal record requiring additional forgiveness);
• After the waiver is approved, comply with DEPARTING the United States to obtain an immigrant visa abroad; and
• Demonstrate that the denial of a waiver of inadmissibility would result in extreme hardship to their U.S. CITIZEN SPOUSE OR PARENTS. IMPORTANT NOTE:  This is an absolute requirement for the provisional waiver option.  Applicants who have other relatives that will suffer without them, such as a Legal Permanent Resident spouse or U.S. citizen children, will NOT be eligible for the new procedure unless there is a U.S. Citizen spouse or parent who will suffer unless the application is granted.

FURTHERMORE, THOSE APPLICANTS ALREADY IN PROCESS WHO RECEIVED AN APPOINTMENT LETTER FROM THE NATIONAL VISA CENTER DATED ON OR BEFORE JANUARY 3, 2013 ARE NOT ELIGIBLE TO TAKE ADVANTAGE OF THIS NEW PROCESS.  (Only if that Immigrant Visa case is terminated by the Department of State could the applicant start over again from the beginning of the process, file a new I-130 relative petition, and then choose the option of filing the provisional waiver.)

While no one can predict how long the applicant will stay outside the United States during this last step of the process, the idea is that it will assuredly be much faster than the current wait times.
Now is the time to act! Contact our trained legal professionals at 312-782-1804 for a consultation to see if you or someone you love qualifies for this new procedure.