Stateside Processing
of Waivers of Inadmissibility for Immigrant Relatives
of U.S. Citizens and Permanent Residents
USCIS announced its intent to implement Stateside
Processing of Unlawful Presence Waivers.
Currently, many relatives of U.S. citizens and
lawful permanent residents face
unnecessary and dangerous bureaucratic hurdles when
they apply for lawful permanent
residence (“green card”). In order to be granted permanent residence,
these applicants are required to travel to a U.S. consulate in their
home country to be interviewed and wait
for the visa to be processed. But departure from the U.S. triggers a 3- or
10-year bar to re-entry for many applicants—specifically those who
have been unlawfully present in the U.S. for more than 180 days.
The new procedure will allow certain immediate
relatives—spouses, children and parents of adult of U.S. citizens—to apply for waivers of
the unlawful presence bars while remaining in the U.S. If the individual is found eligible, USCIS
will grant a provisional waiver.
He or she will still have to depart the U.S. and visit a U.S. consulate abroad to
apply for an immigrant visa. During the immigrant visa interview, the
consular officer will make the finding of inadmissibility based on
unlawful presence and apply the provisional waiver.
If other grounds of inadmissibility are found, the individual would
need to submit another waiver application, if
eligible, while abroad. In many cases, the
provisional waiver will reduce the wait period
abroad and the separation from the
applicant’s family by several months or years.
Individuals will still need to meet the extreme
hardship standard established in existing
law to obtain a waiver. The January 6 notice states that USCIS does
not intend to modify the standard.
According to the January 6 notice, the new process
will not apply to family members of
lawful permanent resident petitioners. It will also not include immediate relatives
if their qualifying relative for the hardship waiver is not
a U.S. citizen spouse or parent. These
individuals will still need to apply under the
existing procedure (departing the country
first and applying for the waiver while
abroad). There is no valid reason not to
apply the same procedure to these individuals whose spouses
and children face the same
bureaucratic delays, obstacles and dangers when
required to wait abroad for their waiver adjudications.
The new procedure will apply only to individuals
who are subject to the 3- and 10-year
bars for unlawful presence.
Individuals who are subject to other grounds
of inadmissibility are not affected under the new
process and will still have to depart the
U.S. before applying for any waiver.
The new provisional waiver procedure has not yet
taken effect. The notice issued on
January 6 announces the government’s intent to
issue a proposed regulation at a future
date. Next, DHS will issue a Notice of Proposed Rulemaking (NPRM) that will include a
proposed regulation governing the waiver process
and will invite public comment. The notice states that the new waiver process will not
be implemented until a final rule is issued and the change becomes effective.